A federal judge in Oregon ruled there is no 'right to wilderness' in the ConstitutionA federal judge in Oregon said the Constitution does not guarantee the right to be left alone in wilderness, freeing the government from a climate change lawsuit. Photo credit: Natalie Behring/Getty Images
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By Karen Savage

Despite recognizing that climate change is a “diffuse, global phenomenon that affects every citizen of the world,” a federal judge in Oregon dismissed a lawsuit filed last year by groups alleging that the federal government is violating their Constitutional rights by contributing to climate change.

In his ruling, U.S. District Court Judge Michael J. McShane on Wednesday said the plaintiffs—the Animal Legal Defense Fund, Seeding Sovereignty and six individuals—do not have standing to sue because they are not uniquely affected by the harms associated with climate change. McShane also said the plaintiffs do not have a fundamental “right to wilderness” as they had claimed in the suit.

The lawsuit alleged that by supporting the fossil fuel industry and failing to take action on climate change, the Department of Interior, the Department of Agriculture and other federal agencies are violating the right to be left alone guaranteed under the First, Fifth and Ninth amendments. They urged the court to engage in “nothing short of revolutionary thinking” by recognizing a right to wilderness.

The Department of Justice (DOJ), maintained that no court has recognized a fundamental right to wilderness and said there is no First Amendment right to be “free from human influence in wilderness,” as the plaintiffs had claimed.

McShane agreed.

“The lower courts—bound by rule of law—are not the forum for the ‘revolutionary’ thinking that plaintiffs articulately espouse in their briefing,” McShane wrote in his order. “Indeed, this Court has previously declined invitations to create new fundamental rights that are not enumerated in the constitution or found in Supreme Court precedent.”

In their complaint, the plaintiffs had cited the federal judge’s ruling in Juliana v. United States, the landmark Constitutional youth climate case, that the government has a “continued affirmative duty to safeguard public trust assets” and that there exists a “right to a climate system capable of sustaining human life.”

But McShane said the reasoning in Juliana did not apply to this case. The Juliana plaintiffs, he wrote, “did not object to the government’s role in just any pollution or climate change, but rather catastrophic levels of pollution or climate change.” He said in this case, the Animal Legal Defense Fund, Seeding Sovereignty and the six individuals “allege nothing of the sort” and said the right to a stable climate system is narrower than the right to wilderness.

The DOJ did not immediately respond to a request for comment. 

The plaintiffs said they will appeal the ruling.

“It would be odd if the Constitution and the right to be free protected us from minor governmental intrusions, but not an existential threat. The Supreme Court has described freedom as the right to be let alone, which creates a baseline for environmental protection that includes wilderness,” said Carter Dillard, a senior policy adviser for the Animal Legal Defense Fund. 

“We are faced with the climate crisis because the government has failed to protect our right to be free—but it’s not too late to change course.”

The government successfully argued to McShane that the plaintiffs do not have standing because they could not show why they were specifically impacted by climate change, an argument the government is also using in trying to keep Juliana from going to trial. A European court also used this reasoning to dismiss a lawsuit against the European Union filed by families and a youth group from eight countries alleging their rights are being violated by inadequate action against climate change.

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