SUMMER SAGOONICK; LINNEA L., а minor, by and through her guardian, HANK LENTFER; TASHA ELIZARDE; CADE TERADA; KAYTLYN KELLY; BRIAN CONWELL; JODE SPARKS; MARGARET “SEB” KURKLAND; LEXINE D., a minor, by and through her guardian, BERNADETTE DEMIENTIEFF; ELIZABETH BESSENYEY; VANESSA DUHRSEN; ANANDA ROSE AHTAHKEE L., a minor, by and through her guardian, GLEN “DUNE” LANKARD; GRIFFIN PLUSH; CECILY S. and LILA S., minors, by and through their guardians, MIRANDA WEISS and BOB SHAVELSON; and ESAU SINNOK v. STATE OF ALASKA; OFFICE OF GOVERNOR and GOVERNOR MIKE DUNLEAVY, in an official capacity; DEPARTMENT OF ENVIRONMENTAL CONSERVATION and COMMISSIONER JASON BRUNE, in an official capacity; DEPARTMENT OF NATURAL RESOURCES; ALASKA OIL & GAS CONSERVATION COMMISSION; ALASKA ENERGY AUTHORITY; and REGULATORY COMMISSION OF ALASKA
Supreme Court No. S-17297
THE SUPREME COURT OF THE STATE OF ALASKA
January 28, 2022
Opinion No. 7583
Superior Court No. 3AN-17-09910 CI
Appellants,
v.
Appellees.
Appeal from the Superior Court of the State of Alaska, Third Judicial District, Anchorage, Gregory Miller, Judge.
Appearances: Brad D. De Noble, De Noble Law Offices LLC, Eagle River, and Andrew L. Welle, Eugene, Oregon, for Appellants. Anna R. Jay and Laura E. Wolff, Assistant Attorneys General, Anchorage, and Kevin G. Clarkson, Attorney General, Juneau, for Appellees. Elizaveta Barrett Ristroph, Fairbanks, for Amicus Curiae League of Women Voters Alaska. Teresa B. Clemmer, Peter Van Tuyn, and Jen Marlow, Bessenyey & Van Tuyn
Before: Bolger, Chief Justice, Winfree, Stowers, Maassen, and Carney, Justices.
WINFREE, Justice.
MAASSEN and CARNEY, Justices, dissenting in part.
I. INTRODUCTION
Alaska Constitutional Convention keynote speaker E.L. “Bob” Bartlett, territorial Alaska‘s delegate to Congress and later one of Alaska‘s original United States Senators, spoke on November 8, 1955 about the importance of Alaska‘s natural resources for future generations: “[F]ifty years from now, the people of Alaska may very well judge . . . this Convention not by the decisions taken upon issues like local government, apportionment, and the structure and powers of the three branches of government, but rather by the decision taken upon the vital issue of resources policy.”1 Bartlett particularly stressed the need to protect Alaska‘s natural resources from the “robber baron philosophy” that in the past had damaged the territory.2 And a convention consultant later noted: “[W]hat we say about natural resources is not limited simply to lands and to fish . . . , but rather being concerned with how we as human beings are going to utilize those so that they become a part of the continuing future development of an area like Alаska.”3
More than six decades after Alaska‘s constitution was drafted, we consider its natural resources provisions in a manner likely not contemplated by Bartlett or the convention delegates. Concerns about protecting and developing natural resources for the State‘s financial support now co-exist with concerns that constitutionally driven resource development creates an existential threat to human life and therefore itself violates individuals’ fundamental rights under Alaska‘s constitution.
A number of young Alaskans — including several Alaska Natives — sued the State, alleging that its resource development is contributing to climate change and adversely affecting their lives. They sought declaratory and injunctive relief based on allegations that the State has, through existing policies and past actions, violated both the constitutional natural resources provisions and their individual constitutional rights. The superior court dismissed the lawsuit, concluding that the injunctive relief claims presented non-justiciable political questions better left to the other branches of government and that the declaratory relief claims should, as a matter of judicial prudence, be left for actual controversies arising from specific actions by Alaska‘s legislative and executive branches. The young Alaskans appeal, raising compelling concerns about climate change, resource development, and Alaska‘s future. But we conclude that the superior court correctly dismissed their lawsuit.
II. SEPARATION OF POWERS IN ALASKA‘S NATURAL RESOURCES MANAGEMENT
A. Constitutional Natural Resource Policy And Framework — Article VIII
It was widely recognized that the Alaska Territory‘s future success as a state would depend upon natural resource development.4 Statehood bills pending during the Constitutional Convention contemplated transferring
The convention delegates “sought to enshrine in the state constitution the principle that the resources of Alaska must be managed for the long-run benefit of the people as a whole.”6 Rather than developing a detailed constitutional code governing resource management,7 the delegates sought to protect the long-term viability of Alaska‘s natural resources from “the indifference or avarice of future generations” by fixing “the general concept of the public interest” in both Alaska law and “the consciousness of Alaskans.”8 The delegates incorporated concepts such as “common use”9 and “sustained yield”10 to promote “a harmonious balance between consumption, preservation, and expansion of natural resources.”11 They further protected the public interest by requiring public notice and development of statutory guidelines for state property disposals.12
Article VIII, sections 1 and 2 of the Alaska Constitution express Alaska‘s resource development
Section 1. Statement of Policy. It is the policy of the State to encourage the settlement of its land and the development of its resources by making them available for maximum use consistent with the public interest.13
Section 2. General Authority. The legislature shall provide for the utilization, development, and conservation of all natural resources belonging to the State, including land and waters, for the maximum benefit of its people.14
Beyond those sections, article VIII explicitly addresses “common use”15 and “sustained yield“;16 the “public domain” available for settlement and certain property uses;17 disposition of property interests;18 mineral rights;19 water rights;20 fishing rights;21 private property rights;22 equal treatment with respect to the use of natural resources;23 and
Article VIII was, when approved, the most comprehensive state constitution provision addressing natural resource management policies and principles,25 and it reflects careful consideration of each government branch‘s role in managing Alaska‘s resources and textually establishes the legislature‘s importance in this policy-making area. We consider the legislature‘s ensuing statutory policies and the young Alaskans’ claims in light of this constitutional framework.
B. The Political Branches’ Roles Under Article VIII
Article VIII, section 2, commands the legislature “to provide for the utilization, development, and conservation of all natural resources belonging to the State.” To satisfy this obligation the legislature has established numerous interrelated statutory policies and delegated implementation authority to the executive branch. We briefly describe the legislature‘s policies, starting with land use pоlicies, continuing with specific relevant policies, and concluding with an environmental protection policy.
1. General land use and management policies
Title 38 of the Alaska Statutes contains the legislature‘s general public land enactments. The legislature‘s overall land management policy mirrors article VIII, section 1: “It is the policy of the state to encourage the settlement of its land and the development of its resources by making them available for the maximum use consistent with the public interest.”26 On a more detailed level the legislature has directed that state lands be managed to balance both public and private purposes and that land use choice be determined through inventory, planning, and classification processes established in
The legislature has delegated to the Department of Natural Resources (DNR), an executive branch agency, the duty to implement the legislature‘s general public lands policies.28 DNR classifies, and if necessary reclassifies, state lands for various uses.29
The legislature has further delegated to DNR authority to manage “exploration, development, and mining” of resources on state lands31 and the authority to lease state lands for oil and gas exploration.32 But the legislature has delegated to the Alaska Oil and Gas Conservation Commission, a different executive branch agency, the authority to regulate oil and gas development for conservation purposes.33
2. Specific development policies
The legislature has enacted other statutory policies addressing fundamental aspects of Alaska‘s natural resources management. The legislature‘s long-standing economic development policy is found in
To further the goals of a sound economy, stable employment, and a desirable quality of life, the legislature declares that the state has a commitment to foster the economy of Alaska through purposeful development of the state‘s abundant natural resources and productive capacity. It is the legislature‘s intent that this development
- offer long-term benefits and increased employment to Alaskans by strengthening and diversifying the state‘s economic base and encouraging new activities;
- provide opportunities for increased personal income or reduced living costs by creating activity in economic sectors;
- have a positive effect on the revenue needs and fiscal conditions of the state and local communities; [and]
- be undertaken after consideration of the social and economic views of citizens impacted by the development, and only after adequate protection is assured for Alaska‘s environment.
The legislature has made a related finding that Alaskans have an interest in oil and gas development to “maximize the economic . . . recovery of those resources” and that it is in the State‘s best interests to encourage oil and gas resource assessments allowing flexibility in leasing and minimizing the adverse impact of exploration, development, production, and transportation activity.35
The legislature‘s more recent Arctic policy focuses on economic and natural resource development above the Arctic Circle, along with related environmental concerns, and is found in
It is the policy of the state, as it relates to the Arctic, to . . . uphold the state‘s commitment to economically vibrant communities sustained by development activities consistent with the state‘s responsibility for a healthy environment, including efforts to . . . ensure that Arctic residents and communities benefit from economic and resource development activities in the region; . . . sustain current, and develop new, approaches for responding to a changing climate, and adapt to the challenges of coastal erosion, permafrost melt, and ocean acidification; . . . collaborate with all levels of government, tribes, industry, and nongovernmental organizations to achieve transparent and inclusive Arctic decision-making, including efforts to . . . value and strengthen the resilience of communities and respect and integrate the culture,
language, and knowledge of Arctic peoples[;] . . . recognize Arctic indigenous peoples’ cultures and unique relationship to the environment, including traditional reliance on a subsistence way of life for food security, which provides a spiritual connection to the land and the sea; . . . [and] safeguard the fish, wildlife, and environment of the Arctic for the benefit of residents of the state; . . . .
The legislature‘s stated (but uncodified) intent underlying the Arctic policy included recognition that although climate change presents risks, continuing resource development in an environmentally and socially responsible manner is essential to Alaska‘s economy and residents.37
The legislature‘s long-standing mineral policy is found in
The legislature, acting under art. VIII, sec. 1 of the Constitution of the State of Alaska, in an effort to further the economic development of the state, to maintain a sound economy and stable employment, and to encourage responsible economic development within the state for the benefit of present and future generations through the proper conservation and development of the abundant mineral resources . . . , including metals, industrial minerals, and coal, declares as the mineral policy of the state that
- mineral exploration and development be given fair and equitable consideration with other resource uses in the multiple use management of state land; . . . .
The legislature‘s relatively recent energy policy is found in
The State of Alaska recognizes that the state‘s economic prosperity is dependent on . . . energy to supply the state‘s . . . needs. The state also recognizes that worldwide supply and demand for fossil fuels and concerns about global climate change will affect the price of fossil fuels . . . . [I]t is the policy of the state to . . . encourage economic development by . . . promoting the development of renewable [energy sources] . . . . [and] promoting the development, transport, and efficient use of nonrenewable and alternative energy resources, including natural gas, coal, oil, gas hydrates, heavy oil, and nuclear energy for use by Alaskans and for export . . . .
The legislature‘s stated (but uncodified) intent underlying the energy policy focused on energy efficiency, calling for a 15% increase in energy efficiency between 2010 and 2020 and for 50% of electricity generation through renewable resources by 2025, while emphasizing “remain[ing] a leader in petroleum and natural gas production and becom[ing] a leader in renewable and alternative energy development.”40
3. Environmental protection and public trust policy
The legislature‘s long-standing environmental protection and public trust policy is found in
(a) It is the policy of the state to conserve, improve, and protect its natural resources and environment and control water, land, and air pollution, in order to enhance the health, safety, and welfare of the people of the state and their overall economic and social well-being.
(b) It is the policy of the state to . . . develop and manage the basic resources of water, land, and air to the end that the state may fulfill its responsibility as trustee of the environment for the present and future generations.42
Article VIII effectively limits the judiciary‘s role in implementing Alaska‘s natural resources policies. In Sullivan v. REDOIL we quoted article VIII, sections 1 and 2, and then stated that it is the legislature‘s “duty to determine the procedures necessary for ensuring . . . the State‘s resources are used ‘for the maximum benefit of its people.’ ”43 We clarified that we do not “provide instruction on how the State should determine what action would be for the maximum benefit of the Alaskan people.”44 We said our role instead is ensuring that constitutional principles are followed, particularly the mandate that “natural resources are to be made ‘available for maximum use
consistent with the public interest.’ ”45 When an executive agency decision about natural resources is challenged under article VIII, our role thus is limited to ensuring that the agency has “taken a ‘hard look’ at all factors material and relevant to the public interest.”46
As we explained in Sullivan:
The “hard look” doctrine for reviewing DNR‘s decisions first appeared in Hammond v. North Slope Borough, when we referenced a United States Supreme Court statement that the “court cannot substitute its judgment as to environmental consequences, but should only ensure that the agency has taken a ‘hard look.’ ” A year later, in Southeast Alaska Conservation Council, Inc. v. State, we stated that our role is to
ensure that the agency “has given reasoned discretion to all the material facts and issues.” The court exercises this aspect of its supervisory role with particular vigilance if it “becomes aware, especially from a combination of danger signals, that the agency has not really taken a ‘hard look’ at the salient problems and has not genuinely engaged in reasoned decision making.”
Since then, we havе used the “hard look” standard when reviewing agency decisions on resource uses.47
This is in stark contrast to how we review claims about individual constitutional rights violations.48
In August 2017 over a dozen young Alaskans (plaintiffs49) petitioned the Alaska Department of Environmental Conservation to adopt an agency rule ensuring carbon dioxide50 and greenhouse gas emissions51 (collectively carbon emissions) have a “reduction trajectory that is based on best climate science.”52 The proposed rule called for the Department to “regulate stationary and mobile sources of [carbon] emissions and the extraction of fossil fuels” in Alaska to reduce carbon emissions to “at least 85% below 1990 levels by 2050” — an estimated global reduction necessary to slow climate change and lower global atmospheric carbon emission levels to a specified level by 2100. The proposed rule also required the Department to publish an annual accounting of the State‘s progress in addressing carbon emissions and to “adopt a Climate Action Plan to meet the reduction requirements specified.”
The Department responded in September, denying the petition but assuring plaintiffs that addressing climate change was a State priority. The Department explained that the proposed rule — by “establish[ing] broad policy goals” rather than directly affecting the public or regulating the agency‘s interactions with the public — did not meet the statutory definition of “regulation“;53 likely
A month later plaintiffs filed a superior court lawsuit against the State and various agencies and officers. Plaintiffs challenged the Department‘s denial of the rule-making petition as a violation of their constitutional rights and made additional constitutionally based claims for declaratory and injunctive relief regarding what they described as the State‘s “Climate and Energy Policy.” The State later movеd to dismiss the lawsuit.55 In April 2018 the superior court heard arguments on the dismissal motion.
In August plaintiffs amended their complaint, adding specificity to their allegations about Alaska climate change and expressly referring to the legislature‘s energy policy in
The first plaintiff named in the amended complaint, for example, alleged that climate change is having a devastating effect on his home, subsistence lifestyle, and cultural traditions. This is manifested, he alleged, in erosion of inhabited seacoast due to loss of sea ice that “has historically been a buffer against storms, storm surges, and flooding“; “accelerating thaw of the permafrost underlying [his home] community,” causing both erosion and food-cellar flooding; damage to traditional hunting practices and loss of game due to thinning sea ice; inadequate snow cover for necessary winter travel; harm to prey animals such as walrus, seal, and caribou, both directly and through damage to their food supply; increased wildfires damaging the air quality necessary for outdoor recreation; and feelings of “anxiety, stress and loss.” Other plaintiffs alleged specific harm to their recreational opportunities, diet, physical and mental health, and traditional cultural activities.
Plaintiffs also made specific factual allegations about State actors’ roles in “causing, contributing to, and exacerbating climate
Plaintiffs described “overwhelming scientific consensus that human-caused climate change is occurring“; sources of human-caused increase in carbon emissions; impact on sea levels, ocean аcidification, human disease, and mental health disorders; and extreme weather events such as floods and hurricanes. Plaintiffs focused on climate-change impacts in Alaska, detailing increased temperatures, effects on Arctic sea ice and effects on marine mammals and coastal communities, glacial melt and its “profound impacts on freshwater and marine aquatic resources,” and permafrost thawing. They described wildfires, spruce beetle infestations, ocean acidification, and threats to salmon, other fish species, and a variety of land-based plants and mammals. They detailed these changes’ effects on Alaskans, amplifying individual plaintiffs’ allegations about damaged communities, subsistence hunting and fishing, traditional and cultural activities, and health. Plaintiffs also alleged “[e]conomic and financial losses from climate change [related to] healthcare, wildlife and fisheries management, disaster relief, infrastructure construction and repair, and energy development, among others.”
Plaintiffs sought a declaratory judgment stating that: (1) they have a “fundamental and inalienable constitutional right[] to . . . a stable climate system that sustains human life and liberty“; (2) the State has a duty under the public trust doctrine to protect Alaska‘s natural resources; (3) the State has exacerbated climate change in violation of plaintiffs’ individual constitutional rights; (4) the State has put plaintiffs in danger by failing to reduce Alaska‘s carbon emissions; (5) the State has discriminated against plaintiffs as members of a protected age-based class who will suffer from climate change effects for a longer period of time than will older people; (6) the State has violated its duty to protect Alaska‘s natural resources; and (7) the Department‘s denial of the rule-making petition violated plaintiffs’ individual constitutional rights. Plaintiffs also requested injunctive relief requiring the State to: (1) stop implementing its energy policy in violation of their rights; (2) “prepare a complete and accurate accounting of Alaska‘s [carbon] emissions,” including “in-boundary and extraction-based emissions” and “emissions attributable to fossil fuels extracted in Alaska and transported and combusted out of state“; and (3) develop and submit to the сourt “an enforceable state climate recovery plan... consistent with global emissions reductions rates necessary to stabilize the climate system.”
After plaintiffs filed their amended complaint, the parties notified the superior court that they had agreed no further briefing or arguments were necessary for the court to rule on the State‘s pending dismissal motion. In October the court granted the State‘s motion, dismissing plaintiffs’ injunctive relief claims because they implicated non-justiciable political questions, dismissing plaintiffs’ requests for declaratory relief on prudential grounds, and concluding that the Department‘s denial of plaintiffs’ rule-making petition complied with statutory requirements and was not arbitrary.
Plaintiffs appeal.
IV. DISCUSSION
A. Dismissal Of Plaintiffs’ Declaratory Judgment And Injunctive Relief Claims
1. Standard of review
“We review a motion to dismiss de novo, construing the complaint liberally and accepting as true all factual allegations,” and we generally “do not consider materials outside the complaint and its attachments.”59
2. Kanuk ex rel. Kanuk v. State, Department of Natural Resources
Plaintiffs’ factual allegations and legal claims are similar to those addressed in our 2014 Kanuk ex rel. Kanuk v. State, Department of Natural Resources decision.64 In that case, like this one, the plaintiffs sought a court mandate for substantive State action in response to potentially catastrophic climate change. Because we affirmed the superior court‘s denial of any relief in Kanuk, many arguments in this appeal focus on factual and procedural comparisons of the two cases.
The Kanuk plaintiffs were a diverse group of young Alaskans who claimed the State had violated duties under the Alaska Constitution and the public trust doctrine by failing to take steps to protect the atmosphere and curb carbon emissions.65 The superior court dismissed their complaint, holding that their requests for declaratory and injunctive relief were non-justiciable political questions; the Kanuk plaintiffs appealed.66 We affirmed the dismissal, but for slightly different reasons.
We first held that the Kanuk plaintiffs had standing67 and that their claims were not barred by sovereign immunity.68 We held that three claims — asking that the court order the State to use the best available science, lower carbon emissions, and prepare a carbon emission accounting — were properly dismissed as non-justiciable because they involved policy questions within other government branches’ particular competence.69 We disagreed with the superior court‘s decision that the remaining claims also presented non-justiciable political questions, holding that declaratory judgment claims on the nature of the public trust doctrine were justiciable because whether the State has breached a legal duty is a question we can answer, assuming we first can identify the duty at issue.70 But despite the claims’ justiciability, we held dismissal on prudential grounds was proper because the declaratory relief sought would not “clarify and settle [the] legal relations” between the parties and thus ultimately would “fail to serve the principal prudential goals of declaratory relief.”71
We apply Kanuk‘s analytical framework to determine whether plaintiffs’ claims are justiciable. This requires answering two questions: (1) [W]hether deciding the claim would require us to answer questions that are better directed to the legislative or executive branches of government (the “political question” doctrine), and (2) whether there are other reasons — such as ripeness, mootness, or standing — that persuade us that, though the case is one we are institutionally capable of deciding, prudence counsels that we not do so.72
As we explain below, plaintiffs’ injunctive relief claims present non-justiciable political questions. And although plaintiffs’ declaratory relief claims do not necessarily present non-justiciable political questions, the superior court properly dismissed them on prudential grounds after correctly determining that it could not grant injunctive relief.
a. Plaintiffs’ injunctive relief claims and our non-justiciable political questions analysis
We previously have explained that the separation of powers doctrine prohibits Alaska courts from resolving purely political questions.73 But “merely characterizing a case as political in nature will [not] render it immune from judicial scrutiny.”74 There are no “exact boundaries between the political and the justiciable,” but we identify political questions “by applying the test announced by the United States Supreme Court in Baker v. Carr.”75 Baker lists six factors, at least one of which is “[p]rominent on the surface” of any case involving a political question:
[1] a textually demonstrable constitutional commitment of the issue to a coordinate political department; or [2] a lack of judicially discoverable and manageable standards for resolving it; or [3] the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or [4] the impossibility of a court‘s undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or [5] an unusual need for unquestioning adherence to a political decision already made; or [6] the potentiality of embarrassment from multifarious pronouncements by various departments on one question.76
“Unless one of these formulations is inextricable from the case . . . there should be no dismissal for non-justiciability on the ground of a political question‘s presence.”77
Plaintiffs sought an injunction requiring the State to: (1) stop implementing its statutory energy policy in violation of their asserted constitutional rights; (2) “prepare a complete and accurate accounting of Alaska‘s [carbon] emissions“; and (3) work with the Department to develop and submit to the superior court “an enforceable [S]tate climate recovery plan ... consistent with global emissions reductions rates necessary to stabilize the climate system.”
These closely resemble the requests in Kanuk. The Kanuk plaintiffs sought declaratory and injunctive relief, requesting that the court: (1) “declare that the State[]” has a public trust “obligation to protect the atmosphere” by implementing the “best available science“; (2) “order the State ‘to prepare a full and accurate accounting of Alaska‘s current carbon dioxide emissions’ “; and (3) “order the State to reduce emissions ‘by at least
The superior court in this case concluded that plaintiffs’ injunctive relief claims were “materially indistinguishable” from those in Kanuk and denied relief. Plaintiffs contend the court made two errors. They first argue that the court (and our Kanuk decision) should not have focused on the requested relief to determine whether the ”claims [themselves] present a political question.” (Emphasis in original.) And they argue that, unlike the Kanuk plaintiffs, they point to an initial State legislative policy determination and affirmative State actions allegedly violating their constitutional rights. Plaintiffs contend that these differences render their claims justiciable. We consider and reject these arguments in turn.
i. The superior court did not err by considering the injunctive relief requested by the plaintiffs.
Plaintiffs argue that the superior court “obfuscate[d] the proper [political question] inquiry” by focusing on the requested relief instead of the claims presented. But we took the very same approach in Kanuk,82 and a review of our case law reveals that the remedy is a relevant consideration in the political question analysis.83 Although plaintiffs call this approach “an anomaly,” several federal circuit courts of appeal decisions demonstrate that relief is routinely considered during the political question analysis.84 Categorizing past State actions as a single energy policy “implemented through [its] historical and ongoing affirmative aggregate and systemic actions” rather than contemporaneously
Contrary to plaintiffs’ argument, Baker does not foreclose our approach. After explaining that the claims in Baker were justiciable, the United States Supreme Court cursorily wrote: “[I]t is improper now to consider what remedy would be most apрropriate if appellants prevail at the trial.”85 But the Court was not excluding from the political question analysis all consideration of remedies; it was acknowledging that an appellate court generally should not speculate about hypothetical remedies after determining that a trial court improperly dismissed claims as non-justiciable. That is not the posture of this case. The superior court thus did not err by considering plaintiffs’ requested relief as part of its political question analysis.
ii. Plaintiffs’ injunctive relief claims present non-justiciable political questions.
“[T]he relationship between the judiciary and the coordinate branches of the . . . Government . . . gives rise to the ‘political question.’ ”86 The political question doctrine maintains the separation of powers by “exclud[ing] from judicial review those controversies which revolve around policy choices and value determinations constitutionally committed for resolution to” the political branches of government.87
We conclude that plaintiffs’ injunctive relief claims present non-justiciable political questions, as did the claims in Kanuk.88 We do not reach this conclusion lightly; Alaska courts have a duty to decide cases properly before them.89 But respect for, not dereliction of, our constitutional duty warrants this conclusion. The Constitution‘s text, the separation of powers doctrine, and Kanuk‘s sound precedent prevent us making the legislative policy judgments necessary to grant the requested injunctive relief.
As explained earlier, article VIII enshrines an overarching constitutional policy of making natural public resources available for maximum use consistent with the public interest.90 It explicitly directs the legislature (and not the judiciary) to manage and develop the State‘s natural resources for the maximum common use and benefit of all Alaskans.91 We have long recognized that, in light of this constitutional delegation of authority, our role in reviewing legislative decisions about management and development of natural resources is necessarily limited. Our “hard look” approach to cases involving the proper balance between development and environmental concerns derived from a recоgnition that we cannot, and should not, substitute our judgment for that of the political branches.92
Plaintiffs essentially seek to impose ad hoc judicial natural resources management based on case-by-case adjudications of individual fundamental rights. Judges would be deciding the extent of individual Alaskans’ constitutional right to some level of development or conservation under article VIII based on those individual Alaskans’ arguments about what would provide them “a natural right to life, liberty, the pursuit of happiness, and the enjoyment of the rewards of their own industry” under article I. But the Constitution expressly delegated to the legislature the duty to balance competing priorities for the collective benefit of all Alaskans. It thus is impossible to grant plaintiffs’ requested injunctive relief without also infringing on an area constitutionally committed to the legislature, abandoning our “hard look” standard of review for natural resource decisions, and disrespecting our coordinate branches of government by supplanting their policy judgments with our own normative musings about the proper balance of development, mаnagement, conservation, and environmental protection.97
[Although] the science of anthropogenic climate change is compelling, government reaction to the problem implicates realms of public policy besides the objectively scientific. The legislature — or an executive agency entrusted with rule-making authority in this area — may decide that employment, resource development, power generation, health, culture, or other economic and social interests militate against implementing what the plaintiffs term the “best available science” in order to combat climate change.103
Kanuk‘s core holding on this issue is that the “science- and policy-based inquiry” and policy choices necessary to implement resource development are “better reserved” for the political branches.104 That holding applies to this case.
Granting injunctive relief would require making the very same legislative-like policy choices that in Kanuk we said courts could not make. Plaintiffs primarily seek an injunction mandating that the State develop a “climate recovery plan” that is “consistent with global emissions reduction rates necessary to stabilize the climate system.” Plaintiffs further seek to have the court “[r]etain continuing jurisdiction [to] enforc[e]” that order. Granting an injunction necessarily would impose a court-made policy judgment on the other political branches that no competing interest is more important than implementing the best avаilable science, the plaintiffs’ presumptive source of the reduction rate.105 But this is beyond the “limited institutional role of the judiciary” because it requires a legislative policy judgment.106
Plaintiffs pleaded their claims differently than the Kanuk plaintiffs, but that does not change our analysis. We said in Kanuk that the “underlying policy choices” were not the courts’ to make “in the first instance,” perhaps unintentionally suggesting that future plaintiffs could resolve the Kanuk complaint‘s shortcomings merely by identifying some relevant initial legislative policy
Plaintiffs point to Plata v. Brown, a United States Supreme Court decision upholding an injunction requiring California to reduce its prison population to 137.5% of building design capacity to cure Eighth Amendment violations,109 and they suggest that we likewise should “set the constitutional floor necessary for preservation of [p]laintiffs’ rights and leave to [the State] the specifics of developing and implementing a compliance plan.” But Plata‘s remedy was granted in accordance with the Prison Litigation Reform Act, which authorized federal courts to require the release of prisoners as a remedy to cure federal rights violations under certain conditions.110 Any separation of powers concerns therefore were less salient because Congress had authorized the requested remedy.111 By contrast, the remedy plaintiffs seek in this case would require courts to make decisions that article VIII has committed to the legislature, and separation of powers considerations therefore are clearly implicated.112
The Alaska Constitution and relevant statutes do not leave plaintiffs without recourse. They may challenge discrete actions implementing State resource development and environmental policies.113 They may attempt to legislate by initiative.114 They also may continue advocating their position to the public and working to generate enough legislative political will to enact their preferred policies and implementations into law. But having a
b. Plaintiffs’ declaratory relief claims and prudential non-justiciability analysis
Plaintiffs also sought a declaratory judgment stating that: (1) plaintiffs have “fundamental and inalienable constitutional rights to life, liberty, and property . . . and other unenumerated rights, including the right[] to a stable climate system that sustains human life and liberty“; (2) the State has a public trust duty to protect Alaska‘s natural resources; (3) the State has violated plaintiffs’ various constitutional rights by exacerbating climate change through its statutory energy policy; (4) the State has put plaintiffs in danger by not reducing Alaska‘s carbon emissions; (5) the State has discriminated against plaintiffs as members of a protected age-based class through its
statutory energy policy; and (6) the State has violated its public trust duty to protect Alaska‘s natural resources.
As we stated in Kanuk:
The Baker factors for identifying non-justiciable issues do not apply to judicial interpretations of the constitution. Indeed, “[u]nder Alaska‘s constitutional structure of government, ‘the judicial branch . . . has the constitutionally mandated duty to ensure compliance with the provisions of the Alaska Constitution.’ ” . . . [C]laims seeking primarily an interpretation of [the Alaska Constitution] and the public trust doctrine do not present non-justiciable political questions.116
Plaintiffs’ declaratory relief claims, like those in Kanuk, do not necessarily present non-justiciable political questions. Plaintiffs seek an interpretation of the Alaska Constitution. They correctly note that we have a “constitutionally mandated duty to ensure [executive and legislative branch] compliance with the provisions of the Alaska Constitution.”117 But even if plaintiffs’ declaratory relief claims do not present non-justiciable political questions, justiciability is not guaranteed.118
A claim also must present an “actual controversy” that “is appropriate for judicial determination” because it is “definite and concrete, touching the legal relations of parties having adverse legal interests . . . . It must be a real and substantial controversy
We have discussed Alaska‘s declaratory judgment framework in light of its federal counterpart elsewhere and only briefly review it here.120 Although Alaska courts may issue declaratory judgment when there is “an actual controversy,” courts are not required to grant declaratory relief because it “is a ‘nonobligatory remedy.’ ”121 “[P]racticality and wise judicial administration” thus guide the discretionary decision to grant or deny declaratory relief.122 And if a court declines to grant declaratory relief, it
need not undertake a “wasteful expenditure of judicial resources” in “the futile exercise of hearing a case on the merits first.”123
Prudential concerns often caution against issuing declaratory relief.124 “We have explained that declaratory judgments are rendered to clarify and settle legal relations, and to ‘terminate and afford relief from the uncertainty, insecurity, and controversy giving rise to the proceeding.’ ”125 Prudence therefore dictates that courts should not grant declaratory relief unless it will meaningfully accomplish these goals.126 Consideration of these goals counsels against granting declaratory relief in this case, as it did in Kanuk.127
In Kanuk we concluded that declaratory relief “could serve to clarify the legal relations at issue, [but] it would certainly not ‘settle’ them.”128 We listed five reasons the parties’ legal relations would have remained unsettled, because declaratory relief would: (1) have had “no immediate impact on greenhouse gas emissions in Alaska“; (2) not have compelled “the State to take any particular action“; (3) not have protected “the plaintiffs from the injuries they allege[d] in their complaint“; (4) “not tell the State what it need[ed] to do . . . to satisfy its trust duties and thus avoid future litigation“; (5) conversely . . . not provide the plaintiffs any certain basis on which to
determine in the future whether the State has breached its duties as trustee.”129 We concluded that declaratory relief would not have advanced “the goals of ‘terminat[ing] and afford[ing] relief from the uncertainty, insecurity, and controversy giving rise to the proceeding’ and would thus fail to serve the principal prudential goals of declaratory relief.”130 Declaratory relief in this case thus should be granted only if it settled the legal relations between the parties more fully than it would have in Kanuk.
Plaintiffs argue that the prudential analysis in Kanuk does not apply in this case “given the distinct factual circumstances underlying the present case, including the
We see two relevant differences between this case and Kanuk. The Kanuk plaintiffs asserted a single right under the public trust doctrine;133 in this case plaintiffs assert additional constitutional rights beyond the public trust doctrine. And the Kanuk plaintiffs alleged that the State had violated their rights through inaction;134 in this case рlaintiffs allege that the State has violated their rights through past actions implementing the State‘s energy policy. But neither distinction suggests that granting declaratory relief (absent injunctive relief) would settle the parties’ legal relations more fully than it would have in Kanuk. Declaratory relief alone still would “have no immediate impact on [carbon] emissions,” “would not compel the State to take any particular action,” and would not “protect the plaintiffs from the injuries they allege.”135 It also would not tell the State how to fulfill its constitutional obligations or help plaintiffs determine when their constitutional rights have been violated.136 Without judicially enforceable standards, which the political question doctrine prevents us from developing, declaring the existence or even violation of plaintiffs’ various purported constitutional rights would not settle the parties’ legal relations any more than it would have in Kanuk.
The dissent concedes that this is the correct result if Kanuk is followed.137 But the dissent concludes that our Kanuk analysis no longer is sound.138 The dissent agrees with plaintiffs that article VIII and its implied public trust doctrine create
individual fundamental constitutional “rights in the development, conservation, and use of our natural resources and environment.”139 And the dissent agrees with plaintiffs that article VIII grants each Alaskan an individual fundamental constitutional “right to a climate system that is healthy enough to ‘sustain human life, liberty, and dignity.’ ”140 Finally, the dissent agrees with plaintiffs that we should effectively enter declaratory judgment in their favor by holding that they have individual fundamental constitutional rights to Alaska‘s natural resources under article VIII, which includes a right to a stable climate system.141
The dissent describes this as “an admittedly small step in the daunting project of focusing governmental response to” climate change.142 But the dissent says nothing about the next step it would take in this case. The plaintiffs’ ultimate goal in having us recognize a new fundamental constitutional right — and requiring a State response to global climate change — can be realized only if plaintiffs are allowed to pursue a remedy for the claimed violations of their fundamental constitutional rights. Would the dissent remand for further proceedings to allow plaintiffs to seek their injunctive remedies? Or does the dissent continue to agree with Kanuk‘s proposition that the political question doctrine prevents plaintiffs from seeking relief in this context? If the latter, what point is there in the dissent‘s proposed creation of unenforceable fundamental constitutional rights under article VIII?143
If the dissent envisions allowing plaintiffs to seek to establish violations of their constitutional rights, that would entirely disregard, and indeed effectively would overrule, our precedent about the judiciary‘s limited role in determining whether, in a challenge to agency action regarding natural resource development and environmental protection, the agency has followed regulatory procedures and taken a “hard look” at all relevant considerations.144 The judiciary‘s formerly limited role would change to case-by-case judicial determinations about the State‘s compelling interests in resource development, an individual‘s fundamental right to a particular atmospheric carbon level, and whether the State‘s proposed action is sufficiently tailored or tethered to the State‘s interests.145 Judges would decide, as a matter of constitutional law, questions such as: what comprises a stable climate system; is a stable climate system measured by Alaskans uniquely susceptible to environmental harms or is there some arbitrary climate stability level for most, but not all, Alaskans; and should a court ultimately order that the State deny all permit applications for oil and gas drilling?
Declaratory judgment about the legislature‘s article VIII duties would do little more than restate the constitutional provisions while leaving the legislature to resolve how the State should fulfill those duties for the maximum benefit of Alaskans collectively.146 And a declaratory judgment about putative individual fundamental constitutional rights to a stable climate system would provide no guidance to the
legislature about undertaking its article VIII duties. We thus affirm the superior court‘s dismissal of plaintiffs’ declaratory relief claims on prudential grounds.147
Plaintiffs also argue that the superior court should not have dismissed their case because a “claim should not be dismissed as long as some relief might be available.”148 But plaintiffs identify no viable relief, and we do not require courts to conduct trials based on the suggestion that some unidentified relief possibly could be available. Plaintiffs ultimately face the same barrier the Kanuk plaintiffs faced: Their claims for injunctive relief present non-justiciable political questions, and granting declaratory relief alone would not meaningfully settle the legal relations between the parties.149
B. Dismissal Of Plaintiffs’ Claims About The Denial Of The Rulemaking Petition
1. Standard of review
We apply the “reasonable and not arbitrary” standard to agency rulemaking decisions about adopting regulations.150 For questions of law involving agency expertise, we apply the reasonable basis standard and “must confirm that the agency ‘... has genuinely engaged in reasoned decision making’ and must verify that the agency has
not failed to consider an important factor in making its decision.”151 But questions of constitutional interpretation are reviewed de novo under the substitution of judgment standard.152
2. Analysis
Plaintiffs asserted that the Department‘s denial of their rule-making petition violated their constitutional rights. The superior court viewed this constitutional challenge as a claim that the denial was arbitrary, thus violating plaintiffs’ right to due process in the agency proceedings. The court cited Johns v. Commercial Fisheries Entry Commission, in which we affirmed courts’ “power . . . to look for administrative compliance with the demands of due process.”153 When exercising this power, courts consider whether the agency‘s decision was reasonable and not arbitrary and whether it complied with the applicable statutes.154 A decision is arbitrary if “an agency fails to consider an important factor in making its decision“;155 an agency must take “a ‘hard look’ at the salient problems” and “genuinely engage[] in reasoned decision making.”156
The superior court found no constitutional violation because the Department “timely issued a four-page written decision that addressed each of [p]laintiffs’ points” and explained its position “with supporting statutes, case law and well-reasoned analysis,” and therefore the denial “satisfied the statutory due process requirements described in Johns.” Notably, the Department‘s decision shows consideration of the “salient problem” central to plaintiffs’ petition: impending climate disaster. The Department informed plaintiffs that responding to climate change was an administration priority; that the governor recently had appointed a “senior advisor for climate and directed her to work with state agencies, tribes and stakeholders on options that best meet Alaska‘s [climate-related] needs“; and that a petitioner group, Alaska Youth for Environmental Action, had “been invited to send a representative to [an upcoming] meeting . . . to discuss the path
As the State points out, we never have described our power to review an agency‘s denial of a proposed regulation as extending beyond the procedural due process review addressed in Johns.157 Plaintiffs argue, however, that the denial of their rule-
making petition violated “substantive due process, equal protection, and public trust rights” and that the superior court erred by failing to evaluate the decision under the heightened standards applicable to these substantive constitutional rights. But plaintiffs cite no authority for the proposition that an agency‘s denial of a rule-making proposal — contrasted with issuing a regulation158 or adjudicating a dispute159 — can violate an individual‘s fundamental constitutional rights. And this argument assumes the Department‘s rule-making authority is much broader than it may be.
The Department discussed several justifications for denying the rule-making petition: that the proposed regulation, by setting “broad policy goals,” failed to meet the definition of “regulation” established by Alaska Statutes and case law; that the proposed regulation “require[d] actions that are inconsistent with practical and fiscal constraints on the State and [the Department]“; that the proposed regulation went beyond the Department‘s statutory authority; that the proposed regulation conflicted with more
lenient federal standards and therefore, under Alaska law, would require support from peer-reviewed studies before it could be adopted; and that — given Alaska‘s modest contribution to global warming worldwide — the proposed regulаtion would not achieve the petitioners’ goals even if implemented.
We find it sufficient to highlight one of these grounds: that the Department cannot use its rule-making authority to “contradict a clear legislative policy.”160 Regulations must be “consistent with and reasonably necessary to implement the statutes authorizing their adoption.”161 A regulation is invalid if it “conflicts with other statutes.”162
The legislature‘s stated energy policy recognizes “concerns about global climate
Alaska‘s environment.”164 And the legislature‘s stated Arctic policy emphasizes a commitment to economic development “consistent with the state‘s responsibility for a healthy environment,” including existing and new “approaches for responding to a changing climate.”165 The Department reasonably could conclude that the proposed regulation was inconsistent with the legislature‘s statutory policies and thus outside its delegated authority. Because the decision to deny the rule-making petition therefore has “a reasonable basis in law,”166 we affirm the superior court‘s rejection of plaintiffs’ challenge to the Department‘s rule-making denial.
V. CONCLUSION
We AFFIRM the superior court‘s dismissal of plaintiffs’ lawsuit.
MAASSEN, Justice, with whom CARNEY, Justice, joins, dissenting in part.
I disagree with the court‘s rejection of declaratory relief as serving no useful purpose. In my view, a balanced consideration of prudential doctrines requires that we explicitly recognize a constitutional right to a livable climate — arguably the bare minimum when it comes to the inherent human rights to which the Alaska Constitution is dedicated.1
A. A Declaratory Judgment Is An Available Remedy.
This case was decided on a motion to dismiss. But ” ‘[m]otions to dismiss are disfavored,’ and before dismissal will be granted it must be ‘beyond doubt that the plaintiff can prove no set of facts that would entitle him or her to relief.’ ”2 “Even if the relief demanded is unavailable, the claim should not be dismissed as long as some relief might be available on the basis of the alleged facts.”3 The alleged facts in this case are, essentially, that rapidly accelerating climate change is causing serious damage on a spectrum ranging from the individual to the global, and that the State, while acknowledging the problem, continues to actively compound it. Given these alleged
facts, a declaratory judgment about the nature of the rights at stake is a small but not inconsequential bit of relief.
Five of the plaintiffs’ claims — paragraphs 3-7 of the amended complaint — seek declarations that their “fundamental and inalienable constitutional rights” have been violated by various actions of the State, both directly and through the State‘s energy policy. In order to determine whether the State‘s constitutional duties have been breached we
- Declare that Defendants have constitutional duties and constitutional and statutory authority to protect and refrain from infringing Plaintiffs’ fundamental and inalienable constitutional rights to life, liberty, and property; equal rights, opportunities and protection under the law; and other unenumerated rights, including the rights to a stable climate system that sustains human life and liberty [and] dignity, to personal security and safety, autonomy, and other liberty interests, including their capacity to provide for their basic human needs, safely raise families, learn and practice their religious and spiritual beliefs, learn and transmit their native cultural traditions and practices, and lead lives with sufficient access to clean air, water, shelter, and food.
- Declare that Defendants have constitutional duties and constitutional and statutory authority under the Public Trust Doctrine to maintain control over and protect Alaska‘s waters, atmosphere, land, fish, wildlife, and other Public
Trust Resources from substantial impairment, waste, and alienation, and to manage such resources prudently and with impartiality and loyalty to present generations, including Youth Plaintiffs, and future generations.
The plaintiffs in Kanuk made similar requests. We described four of their claims for relief as “of the sort that is within the institutional competence of the judiciary” to decide:
[A] declaratory judgment that (1) “the atmosphere is a public trust resource under [a]rticle VIII“; (2) the State therefore “has an affirmative fiduciary obligation to protect and preserve” it; (3) the State‘s duty is “enforceable by citizen beneficiaries of the public trust“; and (4) with regard to the atmosphere, the State “has failed to uphold its fiduciary obligation.”5
We noted in Kanuk that “the plaintiffs do make a good case” for their declaratory judgment claim.6 We explained that the public trust doctrine had its roots in “the sovereign‘s authority over management of fish, wildlife and water resources” and that it was now ” ‘constitutionalized’ in Alaska‘s common use clause, article VIII, section 3,” which reserves these resources “to the people for common use.”7 We observed that our earlier cases had “described the content of the trust, the State‘s duty as trustee, and the public‘s status as beneficiary — reflecting three of the plaintiffs’ claims for declaratory relief in this case,” and that the fourth claim, “[w]hether the State has breached a legal
duty,” was also “a question we are well equipped to answer — assuming the extent of the State‘s duty can be judicially determined in the first place.”8
But notwithstanding our institutional ability to decide these issues, we affirmed dismissal of the requests for declaratory relief in Kanuk, reasoning that declaring the plaintiffs’ rights in the context of the public trust doctrine “would not significantly advance the goals of ‘terminat[ing] and afford[ing] relief from the uncertainty, insecurity, and controversy giving rise to the proceeding’ and would thus fail to serve the principal prudential goals of declaratory relief.”9 We further explained: “Within the very general framework of a public trust, ‘the rights and obligations of [the] litigants’ with regard to the atmosphere would depend on further developments — by the legislature, by executive
The plaintiffs here contend that they have presented us with a “more immediate controvers[y]” based on their challеnge to the codified State Energy Policy,
But I am no longer convinced that nothing can be gained by clarifying Alaskans’ constitutional rights and the State‘s corresponding duties in the context of climate change. When considering the value of declaratory relief, the proliferation of climate-change litigation cuts both ways. On the one hand, as the court cogently explains today, it means that any decision we make here cannot “terminate and afford relief from the uncertainty, insecurity, and controversy giving rise to the proceeding,”11 the consideration we found most compelling in Kanuk. But because prudential concerns such as “practicality and wise judicial administration” also guide our use of declaratory relief,12 we may conclude that it is an appropriate remedy even when terminating controversy is not possible.13
Undoubtedly, Alaskans who bring future challenges to state actions alleged to pose an unacceptable risk to the climate will continue to assert that a livable climate is a constitutional right. Appellate courts like ours have almost always avoided the issue on standing, justiciability, or prudential grounds; have decided that the constitution gives no such right; or have done both.14 We decided in Kanuk that the plaintiffs had standing
to assert their claims and that their claims for declaratory relief were justiciable.15 But we have yet to say explicitly whether such claims have a basis in the Alaska Constitution.
This same important question is before us for the second time in six years. It has been thoroughly briefed by committed parties and three groups of amici. Our failure to answer the question now will not eliminate it but will only postpone our answer, in the meantime putting the burden of redundantly litigating it on plaintiffs, the State, and the trial courts, potеntially to return to us on appeal again and again until we conclude that prudence finally requires an answer. Given the urgency of the issue, I would conclude that “practicality and wise judicial administration” militate strongly in favor of limited declaratory relief identifying the constitutional source of the right plaintiffs claim.16
The plaintiffs’ amended complaint asked for a declaratory judgment that the Alaska Constitution recognizes the right to a climate system that is healthy enough to “sustain human life, liberty, and dignity.” I agree that it does. And I am not as stymied as the court is today by the inability to predict the course of future climate litigation. As is true with every constitutional right, case law will continue to define the right further in the context of more specific controversies — including the extent to which it includes individuals’ interests in “safely rais[ing] families, learn[ing] and
practic[ing] their religious and spiritual beliefs, learn[ing] and transmit[ting] their [N]ative cultural traditions and practices, and lead[ing] lives with sufficient access to clean air, water, shelter, and food,” as the plaintiffs explain their claimed right in the amended complaint. Courts have grappled diligently with such unformed concepts as “fundamental rights,”17 “substantive due process,”18 and “right of privacy,”19 clarifying rights and duties a case at a time. That we cannot answer every subsequent question does not mean we should shy away from answering the first.
The plaintiffs identify a number of possible sources for their claimed constitutional right to a healthy climate system. They contend that the State‘s energy policy, by causing and contributing to climate change, violates their substantive due process rights under article I, section 7; their equal protection rights under article I, section 1; and their “public trust rights” under article VIII.
The plaintiffs’ substantive due process claims, though well reasoned, have minimal support in existing case law. They rely heavily on United States District Judge
Aiken‘s decision in Juliana v. United States20 that public trust claims brought under federal law were enforceable as substantive due process claims under the Fifth Amendment‘s Due Process Clause21 and the Ninth Amendment.22 The Ninth Circuit reversed the district court‘s decision on standing grounds while assuming the existence of the constitutional right;23 District Judge Staton, sitting on the panel by designation and writing in dissent, located the constitutional right at issue not in substantive due process but rather in the “рerpetuity principle” that “is structural and implicit in our constitutional system“: that is, a principle “that the Constitution does not condone the Nation‘s willful destruction.”24
These recent constitutional interpretations are novel and provocative.25 But in Alaska there is a more obvious source of the right at issue in article VIII, which is devoted entirely to defining the people‘s rights in the development,
We addressed article VIII in Kanuk in the context of the public trust doctrine; the plaintiffs had asked us to declare that the atmosphere was a public trust resource the State had an affirmative duty to protect.26 We did not find it necessary to answer that question. We observed that “if the plaintiffs are able to allege claims for affirmative relief in the future that are justiciable under the political question doctrine, they appear to have a basis on which to proceed even absent a declaration that the atmosphere is subject to the public trust doctrine.”27 Because the various aspects of our ecosystem are interdependent, “[a]llegations that the State has breached its duties with regard to the management of individual resources ‘such as water, shorelines, wildlife, and fish’ — which we have already recognized as subject to the public trust doctrine — ‘do not depend on a declaratory judgment about the atmosphere.’ ”28 Simply put, the public trust doctrine is implicated by allegations that a particular State action exacerbates the climate crisis and thereby harms “water, shorelines, wildlife, and fish” — as the plaintiffs have alleged here.
By making those allegations, the plaintiffs plainly seek vindication of a constitutional right. Article VIII emphasizes the importance of resource development but also the importance of environmental stewardship. Article VIII, section 2, says that “[t]he legislature shall provide for the utilization, development, and conservation of all natural resources belonging to the State, including land and waters, for the maximum benefit of its people.” (Emphasis added.) Section 3 states the “common use” principle: “Wherever occurring in their natural state, fish, wildlife, and waters are reserved to the people for common use.” Section 4 articulаtes the “sustained yield” principle: “Fish,
forests, wildlife, grasslands, and all other replenishable resources belonging to the State shall be utilized, developed, and maintained on the sustained yield principle, subject to preferences among beneficial uses.” Interpreting these provisions, we have observed that “[a]rticle VIII requires that natural resources be managed for the benefit of all people, under the assumption that both development and preservation may be necessary to provide for future generations, and that income generation is not the sole purpose of the trust relationship.”29 And as article VIII was described to the voters at the time of Statehood, its “primary purpose is to balance maximum use of natural resources with their continued availability to future generations. In keeping with that purpose, all replenishable resources are to be administered, insofar as practicable, on the sustained yield principle.”30 As we pointed out in Kanuk, the legislature has recognized these principles in declaring it “the policy of the state . . . to manage the basic resources of water, land, and air to the end that the state may fulfill its responsibility as trustee of the environment for the present and future generations.”31 Allegations that climate change destroys natural resources or even limits their continuing availability for present and
future generations clearly implicate the State‘s stewardship responsibilities under article VIII.32
The court today takes a very narrow view of both the rights granted by article VIII
violated individual Alaskans’ article VIII rights.35 And as the court acknowledges,36 we also act within our delegated role when we determine that an agency, despite having taken the requisite “hard look at the salient problems,”37 has reached a decision that infringes a constitutional right. We cannot exercise that oversight effectively without first defining the individual rights that may be implicated.
Recognizing a right to a livable climate does not mean that the right is violated whenever the legislature declares a resource development policy that harms the climate, or whenever an executive agency implements such a policy. Even fundamental rights are not absolute but must be “balanced against conflicting rights and interests,”38 which will often encompass policy judgments we are not equipped to make. But Alaska‘s courts do have the experience and expertise required to weigh the effect of
specific government action on individual rights.39 And defining those rights is part of our task. As recently summarized by Chief Justice Walters of the Oregon Supreme Court: “How to address climate change is a daunting question with which the legislative and executive branches of our state government must grapple. But that does not relieve our branch of its obligation to determine what the law requires.”40
Notes
Under strict scrutiny, when a law substantially burdens a fundamental right, the State must articulate a compelling state interest that justifies infringing the right and must demonstrate that no less restrictive means of advancing the state interest exists. Under intermediate scrutiny, when state action interferes with an individual‘s liberty interest that is not characterized as fundamental, the State must show a legitimate state interest and a “close and substantial relationship” between that interest and the chosen means of achieving it. Under rational basis review, the party claiming a substantive due process violation has the burden of showing that there is no rational basis for the challenged legislation. “This burden is a heavy one, for if any conceivable legitimate public policy for the enactment is apparent on its face or is offered by those defending the enactment, the opponents of the measure must disprove the factual basis for such a justification.”
Doe v. Dep‘t of Pub. Safety, 444 P.3d 116, 125-26 (Alaska 2019) (emphasis in original) (first quoting Sampson v. State, 31 P.3d 88, 91 (Alaska 2001); and then quoting Concerned Citizens of S. Kenai Peninsula v. Kenai Peninsula Borough, 527 P.2d 447, 452 (Alaska 1974)). When evaluating equal protection claims, we apply a “flexible ‘sliding scale’ test” involving a three-step analysis:
First, we determine what weight should be afforded the constitutional interest impaired by the challenged enactment. The nature of the interest is the most important variable in fixing the appropriate level of review. Second, we examine the purposes served by a challenged statute. Depending оn the level of review determined, the state may be required to show only that its objectives were legitimate, at the low end of the continuum, or, at the high end of the scale, that the legislation was motivated by a compelling state interest. Third, an evaluation of the state‘s interest in the particular means employed to further its goals must be undertaken.
Jones v. State, Dep‘t of Revenue, 441 P.3d 966, 978 (Alaska 2019) (quoting Ross v. State, Dep‘t of Revenue, 292 P.3d 906, 909-10 (Alaska 2012)).
§ 1. Inherent Rights. This constitution is dedicated to the principles that all persons have a natural right to life, liberty, the pursuit of happiness, and the enjoyment of the rewards of their own industry; that all persons are equal and entitled to equal rights, opportunities, and protection under the law; and that all persons have corresponding obligations to the people and to the State.
. . . .
§ 7. Due Process. No person shall be deprived of life, liberty, or property, without due process of law. The right of all persons to fair and just treatment in the course of legislative and executive investigations shall not be infringed.
. . . .
§ 21. Construction. The enumeration of rights in this constitution shall not impair or deny others retained by the people.
In Sanders-Reed v. Martinez the plaintiffs sought a judgment declaring that the public trust doctrine imposes a state duty to regulate greenhouse gas emissions in New Mexico. 350 P.3d 1221, 1222 (N.M. App. 2015). The New Mexico Court of Appeals agreed with the plaintiffs that New Mexico‘s constitutional provision “recognizes that a public trust duty exists for the protection of New Mexico‘s natural resources, including the atmosphere, for the benefit of the people of this state.” Id. at 1225. But the court also noted that the constitutional provision “delegates the implementation of that specific duty to the Legislature.” Id. at 1226. The court concluded that whatever common law power the judicial branch may have had under the public trust doctrine to “independently establish the best way to implement protections for the atmosphere, apart from its judicial review [of agency] actions” was superseded by the constitutional delegation to the legislature and the legislature‘s corresponding “statutory scheme.” Id.. The court further explained that issuing a decision that “independently ignores and supplants the [adjudicative] procedures established” by the legislature in its environmental laws would violate separation-of-powers principles. Id. at 1227.The protection of the state‘s beautiful and healthful environment is hereby declared to be of fundamental importance to the public interest, health, safety and the general welfare. The legislature shall provide for control of pollution and control of despoilment of the air, water and other natural resources of this state, consistent with the use and development of these resources for the maximum benefit of the people.