Public Goods, Government Transfers, and Lawsuits for Clean Air and Climate Mitigation

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Jane L. Johnson
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Since the 1930s New Deal and the 1960s Great Society, the US federal budget has shifted from providing pubic goods to distributing transfers (in the form of both spending and lending) to favored groups, a continually metastasizing shift that has now created a federal budgetary and debt crisis. It has also allowed politicians to perfect the fine art of buying votes by awarding federal transfers to select voter groups as a means to winning elections.

What are Public Goods and Who Pays for Them?

Genuine “public goods” are those that are simultaneously “non-excludable” (available to all), and are “non-rival” (can be enjoyed over and over again by anyone without diminishing the benefits they deliver to others). Examples include national defense, police protection and enforcement of property rights, which benefit everyone whether they pay taxes for them or not, and are all non-rival. 

In recent years, some have proposed that clean air and climate mitigation be considered public goods, yet this not yet entirely accepted conventional wisdom, as we will explore below. In fact, most government-provided goods and services are not genuine public goods, despite rhetoric that their purpose is to serve the public’s welfare. Note the distinction that programs designed to “improve the public good” are not necessarily genuine public goods.

Transfer programs such as Social Security, Medicare and Medicaid, “medicare for all” proposals, college student financial aid, student loan “forgiveness”, food stamps, rent vouchers, and numerous others are entitlement programs---often means-tested---rather than public goods, even though they may improve the welfare of certain specifically identified members of the public.

Because government transfer programs are not genuine public goods, they can---and should---be produced and sold as private goods in a market setting, but many people believe—as a value judgment---that insufficient amounts of them would be offered if left to the private market. Hence the policy that governments should produce them, although there is no inherent requirement that they be government-provided. The US federal government, moreover, did not provide transfer programs until the 20th century.

A significant characteristic of public goods is the difficulty or impossibility of enforceably charging service or admission fees, meaning that government tax revenues must provide funding for such services.

Are Clean Air and Climate Mitigation Public Goods?

Both clean air and climate mitigation are considered desirable and beneficial to individuals and society. But are they genuine public goods? That is, are they non-excludable and non-rival? And who should determine that clean air and climate mitigation are public goods?

These questions are no mere technicality, because inherently the larger question is who should pay the cost of clean air and climate mitigation. If they were costless, someone would already have made the effort to achieve them. But they are not costless, so efforts to achieve them must be paid by someone. If they are considered genuine public goods, individuals may justifiably ask government to pay for them through its budgetary process.

Lawsuits Filed to Determine Who Pays for Clean Air and Climate Mitigation

The US executive and legislative branches of the federal government have attempted both to mandate climate regulations and subsidize consumer purchases of climate-mitigating measures such as electric vehicles and solar panels. These are, of course, private goods sold in the marketplace, but the justification for mandates and subsidies is that individuals’ “green” purchases can mitigate climate change to benefit society.

Going a step further, some climate activists have taken novel actions in order to achieve legal standing to file lawsuits asserting that governmental provision of clean air and climate mitigation are constitutionally guaranteed rights on a par with national defense and enforceable private property rights. Winning such lawsuits would in theory qualify clean air and climate mitigation as public goods for which government must pay. Of the several lawsuits attempted, however, only one state-filed lawsuit has thus far succeeded in court.

Juliana v. United States was filed in US District Court for the District of Oregon in 2015 by 21 plaintiffs, ages 8-19, against President Obama. Our Children’s Trust, an Oregon-based public interest law firm, represented the plaintiffs. The firm, which has suits against other states---Hawaii, Utah, Virginia, Alaska, Colorado, Florida, North Carolina, Washington, and Massachusetts---argues that federal and state governments are infringing on youths’ rights to safe climate, and that the government has violated a “right to a stable climate system that can sustain human life.” 

Plaintiffs claimed that their constitutional rights had been violated by the federal government’s actions, and sought an order to enjoin the defendants from continued violation of their rights and to develop a plan to mitigate carbon dioxide emissions. The US Department of Justice argued for the government that there is no constitutional right to a pollution-free environment, and that the court system was not the proper venue to effect such changes.

Activists anticipated the “trial of the century”, a climate Scopes trial, to demonstrate the urgency of climate change and force federal action. But after several years of appeals to dismiss, stays and continuances, in May 2024 the Ninth Circuit Court of Appeals granted the U.S. Department of Justice’s petition for a writ of mandamus seeking dismissal of the case, effectively killing it after having earlier ruled that the plaintiffs lacked standing.

Held v. State of Montana was filed in Montana state trial court in 2020 by 16 young people, ages 2-18, under a state constitution provision that protects “the right to a clean and healthful environment”, a provision found in only a few other state constitutions. The plaintiffs specifically challenged a provision under the Montana Environmental Policy act (MEPA) that forbids state agencies from considering the impacts of greenhouse gas emissions or climate change when assessing costs of fossil fuel projects. As with the Juliana case, Our Children’s Trust again represented the plaintiffs. 

In August 2023 state district court ruled in favor of the plaintiffs that the limitations on considering environmental factors when deciding fossil fuel permits violated the right to a safe environment required by Montana’s constitution. In February 2024 the state of Montana appealed the decision, having called the case a “taxpayer-funded publicity stunt”, leaving a final verdict yet to be decided at the appellate level. This case uniquely combines two features---the state constitutional provision and the MEPA restriction on consideration of environmental factors for extraction permits---that may rule it out as precedent in other state and federal lawsuits.

Genesis B v. the Environmental Protection Agency was filed in federal district court in December 2023 by 18 California children ages 8-17, again assisted by Our Children’s Trust, arguing that the EPA has violated the plaintiffs’ rights to equal protection and due process under the Fifth Amendment. The federal government filed a motion to dismiss the case, contesting the claim that the government has a constitutional obligation to take regulatory action to protect the well-being of citizens against privately-caused harms.

In May 2024 district court dismissed the lawsuit, noting that the case was indistinguishable from the earlier dismissed Juliana case, though the judge did grant the plaintiffs leave to amend their suit, giving them another opportunity to reformulate their claims. 

Elsewhere, the European Court of Human Rights ruled for 200 Swiss women aged over 64, known as KlinaSeniorinnen, who claimed that their government’s climate inaction put them at risk of dying during heatwaves since their age and gender make them particularly vulnerable to climate change impacts. The Swiss government responded that it will take note of the ruling and review what measures Switzerland will take in the future. The ruling cannot be appealed, and some observers expect additional verdicts in other European Union countries.

Who is Ultimately Responsible for Clean Air and Climate?

Whether one accepts the assumptions underlying scientific claims that climate change is real, or one thinks that belief in climate change is akin to a religion or a cult, or believes that hubristic human intervention can alter the outcomes of Mother Nature’s climate cycles, these novel lawsuits are barely within the bounds of today’s legal norms.

Many argue that government’s legislative branch, not the judiciary, is the correct venue to determine whether Americans have a right to clean air and climate mitigation, whether they are genuine public goods, and who should bear the cost of achieving clean air and climate mitigation. 

Note that the lawsuits cited above, claiming that governments have violated individuals’ rights to clean air and climate mitigation, have cast governments as defendants. These suits contrast with other different climate-related suits in which governments are plaintiffs, filing against oil and gas companies for harming air quality, contributing to climate change and harming Americans. 

Given uncertainties whether clean air and climate mitigation are genuine public goods, whether they are constitutional rights, and who should pay for costly efforts to achieve them, we can expect further resort to the judicial system for resolution. Whether courts will take on this challenge is another question.