From Juliana v. United States to Held v. State of Montana to the recently dismissed Lighthiser v. Trump, courts have repeatedly grappled with children’s attempts to harness the courts to advance climate policies. (We previously discussed these cases here, here, and here.)
The Ninth Circuit recently closed another chapter in this story. In G.B. v. United States Environmental Protection Agency, the court affirmed the dismissal of a constitutional challenge brought by 18 California minors. The plaintiffs alleged that the federal government’s practice of “discounting” the future costs and benefits of greenhouse gas (GHG) regulations discriminates against children. The decision is significant because it closes the door on another creative legal attempt to utilize courts — and not the political branches — to effectuate climate policymaking.
Economic Discounting as Age Discrimination
At its core, G.B. challenged what amounts to a government economic tool, not a regulation. The plaintiffs targeted “Discounting Policies” — principally, the Office of Management and Budget’s (OMB) Circular A-4 and the US Environmental Protection Agency’s (EPA) Guidelines for Preparing Economic Analyses — which guide federal agencies in translating the future value of money into present-day terms when preparing cost-benefit analyses. (We last discussed OMB Circular A-4 here.) The concept is rooted in the “time value of money”: that is, a dollar today is generally worth more than a dollar tomorrow.
The plaintiffs’ innovation was to recast this economic premise as a civil rights problem. The plaintiffs contended that discounting future costs and benefits of GHG regulations inherently favors present-day consumption over future consumption, thereby “put[ting] a thumb on the scale” against children, who will bear the brunt of climate impacts over longer lifetimes. In the plaintiffs’ view, this amounted to intentional discrimination in violation of the Fifth Amendment’s equal protection guarantee.
The Ninth Circuit’s Decision
Addressing each of Article III’s standing requirements — injury-in-fact, traceability, and redressability — the Ninth Circuit rejected the plaintiffs’ arguments and affirmed the lower court’s dismissal.
First, the court held that the plaintiffs’ discrimination theory did not state a viable invasion of their equal protection rights. The Discounting Policies do not mention children, much less classify or target them. Children, the court noted, are present-day consumers too. They hold jobs, eat at restaurants, buy video games, and “increasingly have smartphones and tablets.” Because the preference for present consumption operates equally on all present consumers, the plaintiffs could not plead that the policies discriminated against minors “because of” their age. A disproportionate impact is not the same as discriminatory intent, and the US Constitution requires the latter.
Next, the court identified a “speculative chain of possibilities” linking the Discounting Policies to the plaintiffs’ alleged environmental harms. To connect discounting guidance to wildfires and respiratory ailments, one would need to assume — among other things — that EPA will propose a future GHG regulation, that it will apply a positive discount rate, that the rule will under-regulate compared to a hypothetical undiscounted alternative, and that the excess emissions will cause specific harm to the plaintiffs. Like the Fifth and Eighth Circuits concluded in Louisiana v. Biden and Missouri v. Biden,such speculation about future governmental conduct is “too attenuated” for Article III purposes.
Finally, the court held that Juliana remained binding precedent and foreclosed the plaintiffs’ request for declaratory relief. If a declaration that the government’s sweeping fossil-fuel policies violated constitutional rights was “unlikely” to remedy diffuse climate injuries in Juliana, the same was true of a declaration targeting nonbinding regulatory guidance. As the court put it, “[i]ssuing the declaration sought would merely beg the question: now what?”
Intergenerational Equity and the Equal Protection Doctrine
From a civil rights perspective, G.B. highlights the tension between intergenerational equity arguments, which have moral and economic force, and the doctrinal requirements of equal protection law. The court acknowledged that children may, on average, endure more of the harm inflicted by climate-related policies over the course of their lifetimes. The Discounting Policies themselves recognize that environmental regulations affect “future generations without a voice in the current policy process.” But existing constitutional doctrine requires evidence that the challenged action was taken “because of,” not merely “in spite of,” its adverse effects on a protected class. And the plaintiffs presented no such evidence.
Practical Takeaways
The regulated community should take away several points from G.B. v. US EPA.
First, the decision reinforces the Ninth Circuit’s position that broad-based constitutional challenges to federal climate policy face challenging standing barriers in federal court. Circular A-4 and EPA’s Guidelines remain intact as tools that agencies may — but are not required to — employ.
Second, the decision does not mean that youth-led climate litigation is going away. As we have noted before, constitutional climate cases continue to percolate through state courts, some of which have been more receptive to expansive environmental rights. The Held decision in Montana, the Navahine F. settlement in Hawaii, and ongoing cases in other jurisdictions with “Green Amendment” constitutional language remain viable pathways for climate plaintiffs.
Third, future plaintiffs are likely to learn from the G.B. court’s critique and tailor their challenges more narrowly. As prior decisions like Lighthiser illustrate, courts have been consistent in cautioning that climate plaintiffs must anchor challenges in “discrete, final agency actions and statutory text” rather than targeting entire policy regimes. The next wave of youth climate cases may look less like sweeping constitutional challenges and more like targeted challenges to specific regulations, which could pose different and potentially more difficult questions for regulated entities.
Finally, it is worth noting what the court did not do. It did not hold that children lack cognizable interests in climate policy or the factual premise that climate change harms children. And it did not rule on the merits of whether the Discounting Policies violate equal protection. The opinion is in essence a very thorough standing decision. The underlying policy questions — how agencies should weigh the interests of future generations when setting regulatory policy and whether existing analytical frameworks adequately account for the welfare of children — remain very alive for the political branches to address (or not).
