In 2015, a group of 21 young people sued the United States government over climate change through a group called Our Children’s Trust. The case, and the children, are aging. “We’ve been doing this four years,” said Vic Barrett, one of the plaintiffs. “For some of us, that’s a quarter of our lives.” Five of them are now old enough to buy beer and 14 of them can vote.
The closely watched lawsuit, Juliana v. United States, will be back in court again on Tuesday afternoon in Portland, Ore. The case was scheduled to begin last October, but the court granted the Trump administration an unusual pretrial appeal, which will be heard by three judges from the Court of Appeals for the Ninth Circuit. Any decision could have important implications for this and other attempts to use the courts to pursue climate action across the United States.
A brief filed by the plaintiffs in the case demands that the government step up to protect today’s children, and future generations, from the worst effects of climate change. It says they risk being deprived of their “rights to life, liberty, property, and public trust resources by federal government acts that knowingly destroy, endanger, and impair the unalienable climate system that nature endows.”
The federal government wants the case dismissed before it can even go to trial, but the brief argues that “These young people deserve that chance to present their full case against those who through their governance harm them, and let the light of justice fall where it may.” The plaintiffs have also asked the government to put the brakes on new fossil fuel extraction projects while the case is pending.
Lawyers for the Trump administration have argued in their legal filings that the young people’s “misguided” case is fatally flawed and that “there is no fundamental constitutional right to a ‘stable climate system.’” The young plaintiffs, they say, do not meet the technical legal requirements known as standing which allow them to bring a lawsuit at all. (Elements of standing include being able to link a concrete, particular injury to the actions of the defendant.)
What’s more, the government argues, the plaintiffs’ proposed solution is unworkable and unconstitutional, “essentially placing a single district court in Oregon — acting at the behest of a few plaintiffs with one particular perspective on the complex issues involved — in charge of directing American energy and environmental policy.”
Jeffrey Bossert Clark, an assistant attorney general at the Justice Department, said, “Under our laws, making such important decisions about the nation’s energy and climate policy is entrusted to elected officials, not the courts.”
The Obama administration also tried to stop this case, arguing that these are issues suited to the executive and legislative branches, not the courts.
But while the Obama administration signed the Paris climate agreement and took action to curb greenhouse gas emissions, the Trump administration has announced plans to leave the Paris deal, is working to roll back dozens of environmental regulations — and seeks to undercut the science that shows that global warming is real and that there is an urgent need for action.
Andrea Rodgers, a lawyer for the plaintiffs, noted that the administration regularly points to its progress in promoting fossil fuels. (It recently referred to methane as “freedom gas.”) Yet “as the delays continue, the government-created public health disaster gets worse,” she said.
Mary Wood, the Philip H. Knight professor of law at the University of Oregon, said the Trump administration was “aggressively accelerating toward the climate cliff through its frenzied fossil fuel policy, at a time when nations around the world are slamming on the breaks.” Professor Wood, who provided some of the legal reasoning that the plaintiffs’ case is built upon, said, “it would be hard for a court to utterly disregard the peril that the Trump administration has put these children in.”
In the years since the case was filed, the sense of urgency about the need to address climate change has only grown, with reports like the one last year from the United Nations climate panel that projected dire consequences without vigorous action, including worsening food shortages and wildfires, and a mass die-off of coral reefs as soon as 2040.
In those same years, a youth climate movement has risen up and adopted Juliana as part of their broader call for action on climate change. “It’s not just these 21 young people across the United States,” said Mr. Barrett, who is now 21 and a student at the University of Wisconsin. “It’s about highlighting young people all over the United States, and the work we’re doing and the work we’re continuing to do to hold the government accountable for putting our future in jeopardy.”
In the past few days, news conferences and demonstrations were held around the world; on Tuesday, viewing parties were scheduled to watch the live stream of the 40-minute oral argument, which is scheduled to begin at 2 p.m. in Portland.
The plaintiffs want the case to go forward so they can present the evidence in a court of law. The judges could decide to dismiss the case (though the timing of their decision is anyone’s guess) and the consequences could go far beyond this suit. “If the Ninth Circuit expresses a view about the proper role of the courts in addressing climate change, that could have broad implications for other cases,” said Prof. Michael Gerrard, founder of the Sabin Center for Climate Change Law at Columbia Law School. “But it is also possible that the court will rule on narrow procedural grounds that apply only to this case.”
Michael Burger, the executive director of the Sabin Center, said that whatever this court decides is likely to be appealed, and the current Supreme Court, especially since Anthony Kennedy was replaced by Brett Kavanaugh, is not likely to be receptive to such a sweeping case that takes on executive power for environmental ideals. “The Kavanaugh-Kennedy swap almost certainly made the likelihood of success lower than it was before,” Mr. Burger said.
David M. Uhlmann, a former federal prosecutor who now heads the environmental law program at the University of Michigan, said: “In my heart, I love this lawsuit. Everything that’s compelling about this lawsuit from the beginning is even more compelling today.”
“I think anybody who has studied this court would have to conclude this is an uphill battle” he said, but added, “it’s not a foregone conclusion that the Supreme Court would reject these claims.”
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