David Wang*
In what could prove to be a boon for climate litigants, the U.S. Supreme Court decided earlier this year that nominal damages can sufficiently satisfy the “redressability” prong of Article III standing. In Uzuegbunam v. Preczewski, the Supreme Court considered whether Chike Uzuegbunam, a student at Georgia Gwinnett College, could still allege First Amendment violations against college officials even after the officials abandoned the speech restrictions at issue.[1] The Supreme Court decided in March that Mr. Uzuegbunam still had standing to make the claim if he claimed nominal damages—a trivial monetary award for a plaintiff whose legal right was technically violated but is otherwise not entitled to compensation because of no accompanying loss or harm. As a result, Uzuegbunam may have opened up an avenue for many litigants (including climate litigants) to overcome the ever-present thorns of Article III standing requirements.
In 2016, Mr. Uzuegbunam was handing out religious literature on campus when he was stopped by campus police because it was outside one of the two “free speech zones” dedicated for that purpose. He secured a permit and did the same thing in one of the “free speech zones,” but he was again stopped by campus police after he started to speak publicly about his faith; this time it was because it violated a campus a policy against “disturb[ing] the peace and/or comforts of person(s).” Mr. Uzuegbunam and another student subsequently sued Georgia Gwinnett College, arguing that the policy violated their First Amendment rights. Georgia Gwinnett officials chose to discontinue the challenged policies instead of defending them in court. Rather than abandoning his case, Mr. Uzuegbunam claimed nominal damages for the college’s past violation of his First Amendment rights. But because the speech restrictions were gone, Georgia Gwinnett officials argued that nominal damages could not save Mr. Uzuegbunam’s case from being moot. In other words, the officials argued that Mr. Uzuegbunam’s grievance was no longer redressable by the courts.
Justice Thomas, writing for an 8–1 majority, concluded that Mr. Uzuegbunam’s case was not moot. To establish Article III standing, he said, a plaintiff must not only identify an injury-in-fact that is fairly traceable to the challenged conduct but also seek a remedy that is likely to redress that injury.[2] And “[b]ecause redressability is an ‘irreducible’ component of standing, no federal court has jurisdiction to enter a judgment unless it provides a remedy that can redress the plaintiff’s injury.”[3] Justice Thomas concluded that nominal damages satisfy this requirement “where a plaintiff’s claim is based on a completed violation of a legal right.”[4] Drawing on common law, Justice Thomas noted that “because ‘every violation [of a right] imports damage,’ . . . nominal damages can redress Uzuegbunam’s injury even if he cannot or chooses not to quantify that harm in economic terms.”[5] In other words, nominal damages are not symbolic but rather “provide necessary redress for a completed violation of a legal right.”[6]
Seven of the justices signed on to Justice Thomas’s opinion, but there was one peculiar outlier. For the first time since he joined the Supreme Court in 2005, Chief Justice Roberts dissented on his own, criticizing his colleagues for “see[ing] no problem with turning judges into advice columnists.”[7] He lamented that when plaintiffs like Uzuegbunam and Bradford allege neither actual damages nor the prospect of future injury, an award of nominal damages does not change their status or condition at all. Such an award instead represents a judicial determination that the plaintiffs’ interpretation of the law is correct—nothing more. The court is acting not as an Article III court, but as a moot court, deciding cases “in the rarified atmosphere of a debating society.”[8]
His sharp dissent continued: “If nominal damages can preserve a live controversy, then federal courts will be required to give advisory opinions whenever a plaintiff tacks on a request for a dollar. Because I would place a higher value on Article III, I respectfully dissent.”[9]
This was not the first time the Chief excoriated his colleagues in dissent over Article III standing. In Massachusetts v. EPA, the Court concluded that Massachusetts, due to its “stake in protecting its quasi-sovereign interests” as a state, had standing to sue the Environmental Protection Agency over potential damage caused to its territory by climate change.[10] In his dissent, Chief Justice Roberts chastised the 5–4 majority for improperly expanding Article III: “[T]he Court’s self-professed relaxation of those Article III [standing] requirements has caused us to transgress ‘the proper—and properly limited—role of the courts in a democratic society.’”[11] He noted that rulings like the one in Massachusettsare “emblematic not of the looseness of Article III standing requirements, but of how utterly manipulable they are if not taken seriously as a matter of judicial self-restraint.”[12]
Nominal damages generally do not play a role in environmental lawsuits, which more often involve tort law or statutory violations. Some climate change-related lawsuits, however, have involved constitutional violations, notably under the Due Process Clauses of the Fifth and Fourteenth Amendments. Last year, the U.S. Court of Appeals for the Ninth Circuit decided Juliana v. United States, in which it found that the plaintiffs—children claiming to be adversely affected by climate change—did not have standing to sue the federal government for a violation of their substantive due process right to a “climate system capable of sustaining human life.”[13] Unlike in many other climate cases, the Ninth Circuit found for the plaintiffs on the first two standing prongs: injury-in-fact and causation.[14] The three-judge panel held, however, that the plaintiffs’ claimed injuries were not redressable by an Article III court. Specifically, it concluded that “it is beyond the power of an Article III court to order, design, supervise, or implement . . . any effective plan” that would compel the legislative or executive branches to make certain policy decisions.[15]
That has not changed after Uzuegbunam. But what the U.S. Supreme Court has clarified now is that it is not beyond the power of an Article III court to redress an injury with nominal damages. If the Juliana plaintiffs were to have brought their case and requested nominal damages, the Ninth Circuit’s conclusion last January, coupled with Uzuegbunam, suggests they could actually satisfy the Article III standing hurdle. In other words, the plaintiffs are asking the judiciary to evaluate whether they actually have a constitutional right to a “climate system capable of sustaining human life” and whether the federal government violated that right. While at first blush this may seem akin to an advisory opinion, Justice Thomas makes clear that nominal damages are not simply an abstract form of relief: “[A] single dollar often cannot provide full redress, but the ability ‘to effectuate a partial remedy’ satisfies the redressability requirement.”[16] Under Uzuegbunam, a federal court without the power to make the plaintiff whole can still appropriately hear a case under Article III.
This is probably exactly what Chief Justice Roberts is worried about. Nearly 30 years ago, the Supreme Court decided Lujan v. Defenders of Wildlife. [17] That seminal case cemented the three-part standard for Article III standing that we all know and love (or hate): injury-in-fact, causation, and redressability.[18] Roberts penned a law review article about Lujan, emphasizing his view that standing is “properly regarded as a doctrine of judicial self-restraint.”[19] He supported this position by citing to Justice Powell, who observed that the “[r]elaxation of standing requirements is directly related to the expansion of judicial power.”[20] And as evidenced by his full-throated defense of that standard in Massachusetts, Roberts does not appear to take kindly to what he likely perceives as dilutions of those requirements—even to address something as pressing as global climate change.[21] In his view, prior to Uzuegbunam, it seemed like avenues in federal court were limited for plaintiffs alleging climate injuries. But under Uzuegbunam, they may have a new strategy blessed by the U.S. Supreme Court: first, use a nominal damages claim as a way to satisfy one-third of the standing requirements; second, (hopefully) gain a favorable ruling on the merits in the form of declaratory relief;[22] and third, (potentially) use that favorable ruling in their favor in future proceedings for legal or equitable remedies.
This dynamic was put to work almost immediately. A week after Uzuegbunam was decided, the Juliana plaintiffs filed a motion before Judge Ann Aiken in the U.S. District Court for the District of Oregon to amend their complaint against the federal government.[23] They argued in their motion that Uzuegbunam supports their request for declaratory relief, noting that the Supreme Court equated nominal damages to “a form of declaratory relief in a legal system with no general declaratory judgment act.”[24] Whether this equivalence stands in a system with a general declaratory judgment act remains unclear at this time.[25] Judge Aiken also appeared hesitant to equate the two, noting that Uzuegbunam “changes somewhat the complexion of everything.”[26] She therefore suggested to the plaintiffs that they bring requests for both nominal damages and declaratory relief in their amended prayer for relief[27]—arguably encouraging them to effectively, in the words of Chief Justice Roberts, “tack[] on a request for a dollar” . . . just in case.[28]
Does Judge Aiken’s recommendation confirm the notion that Article III standing has become more of a procedural formality than a substantive constitutional requirement? Perhaps, and Chief Justice Roberts would most likely think so. In his dissent in Massachusetts, Roberts bemoaned that the majority’s decision made “standing seem a lawyer’s game, rather than a fundamental limitation ensuring that courts function as courts and not intrude on the politically accountable branches.”[29] Three members of the Supreme Court agreed with him. In Uzuegbunam, Roberts similarly expressed disappointment that the Court’s decision abandoned the principle set in Marbury v. Madison that “[t]he Judiciary is authorized ‘to say what the law is’ only because ‘[t]hose who apply [a] rule to particular cases, must of necessity expound and interpret the rule.’”[30] He concluded that permitting a plaintiff to bring a nominal damages claim was a “‘gratuitous’ exercise of the judicial power.”[31] But this time, he was the only one. We will soon see if his fears are warranted.
David Wang is an Energy, Infrastructure, and Resources associate at K&L Gates LLP in Seattle. He is a 2020 graduate of the University of Washington School of Law and recently clerked for the Honorable Dario Borghesan of the Alaska Supreme Court. He can be reached at David.Wang@KLGates.com.
[1] 141 S. Ct. 792 (2021).
[2] Id. at 797 (citing Spokeo, Inc. v. Robins, 578 U. S. 330, 338 (2016)).
[3] Id. at 801.
[4] Id. at 802.
[5] Id. (quoting Webb v. Portland Mfg. Co., 29 F. Cas. 506, 509 (No. 17,322) (CC. Me. 1838)) (alterations in original).
[6] Id. at 801–02.
[7] Id. at 804; see also Nina Totenberg, Roberts Accuses Supreme Court Justices of ‘Turning Judges Into Advice Columnists’, NPR (Mar. 8, 2021), https://www.npr.org/2021/03/08/974800755/roberts-accuses-supreme-court-justices-of-turning-judges-into-advice-columnists.
[8] Id. (quoting Dir., Off. of Workers’ Compensation Programs v. Perini N. River Assocs., 459 U.S. 297, 305 (1983)).
[9] Id. at 803.
[10] 549 U.S. 497, 520 (2007).
[11] Id. at 548–49 (quoting Allen v. Wright, 468 U.S. 737, 750 (1984)).
[12] Id. at 548.
[13] 947 F.3d 1159, 1164–65 (2020).
[14] Id. at 1168–69.
[15] Id. at 1171.
[16] Uzuegbunam v. Preczewski, 141 S. Ct. 792, 801 (2021) (citing Church of Scientology of Cal. v. United States, 506 U. S. 9, 13 (1992)).
[17] 504 U.S. 555 (1992).
[18] Id. at 560–61.
[19] John G. Roberts, Jr., Article III Limits on Statutory Standing, 42 Duke L. J. 1219, 1221 (1993).
[20] United States v. Richardson, 418 U.S. 166, 188 (1974) (Powell, J., concurring).
[21] See Massachusetts, 549 U.S. at 535–49.
[22] See, e.g., First Amended Complaint for Declaratory and Injunctive Relief at 99, Juliana v. United States, No. 6:15-cv-01517-TC (D. Or. Sept. 10, 2015) (requesting declaration that the federal government “ha[s] violated and [is] violating Plaintiffs’ fundamental constitutional rights to life, liberty, and property by substantially causing or contributing to a dangerous concentration of CO2 in the atmosphere, and that, in so doing, that [the federal government is] dangerously interfer[ing] with a stable climate system required by our nation and Plaintiffs alike”).
[23] See Pls.’ Mot. for Leave to Amend and File Second Amended Complaint for Declaratory and Injunctive Relief and to Lift the Stay, Juliana v. United States,No. 6:15-cv-01517-AA (D. Or. Mar. 9, 2021).
[24] Id. at 15 (citing Uzuegbunam, 141 S. Ct. at 798).
[25] See 28 U.S.C. § 2201(a) (codifying the Declaratory Judgment Act); see also Defs.’ Br. in Opp’n to Mot. for Leave to File a Second Complaint and to Lift the Stay at 13–14, n.9, Juliana v. United States,No. 6:15-cv-01517-AA (D. Or. Apr. 6, 2021) (arguing that “Uzuegbunam is not on point” because “that case involved a claim for nominal damages . . . and did not involve any claim of standalone declaratory relief”).
[26] Transcript of Oral Argument at 21, Juliana v. United States, No. 6:15-cv-01517-AA (D. Or. Jun. 25, 2021).
[27] Id. at 21–22.
[28] Uzuegbunam, 141 S. Ct. at 803. According to the plaintiffs, the federal government has “made clear” that it will argue that it is protected from a claim of nominal damages in this case because Congress has not yet waived sovereign immunity for Fifth Amendment claims like this one. Supp. to Pls.’ Mot. for Leave to Amend and File Second Am. Compl. for Declaratory and Inj. Relief, Juliana v. United States, No. 6:15-cv-01517-AA (D. Or. Jul. 16, 2021). It is unclear whether this is the case, but it is likely. See Am. Civ. Liberties Union v. United States Conf. of Cath. Bishops, 705 F.3d 44, 53 n.7 (1st Cir. 2013) (holding that sovereign immunity bars award of nominal damages against federal officers); see also Brief for the United States as Amicus Curiae Supporting Petitioners, Uzuegbunam v. Preczewski, 141 S. Ct. 792 (2021) (arguing that declaratory relief and nominal damages are different because the latter is subject to sovereign immunity and qualified immunity). The case is currently proceeding through federal district court. See Juliana v. United States, Climate Change Litigation Databases, Sabin Center for Climate Change Law, http://climatecasechart.com/climate-change-litigation/case/juliana-v-united-states/ (last accessed Sept. 15, 2021).
[29] Massachusetts, 549 U.S. at 548.
[30] Uzuegbunam, 141 S. Ct. at 808–09.
[31] Id. at 809.
WSBA ENVIRONMENTAL & LAND USE LAW SECTION 