By Karen Savage
Very few would accuse the Trump administration of actually accepting the science on climate change. The administration has scrubbed climate data from federal government websites, and worked to undo most of President Obama’s climate policies, including pulling out of the Paris Climate Agreement. But government agencies also continue to produce significant data that serves as proof for the “other” side—including recently releasing the fourth National Climate Assessment (NCA) that painstakingly outlines the urgency of climate change.
As a result, while facing at least two lawsuits over its failure to act on climate change, the Department of Justice may find itself representing a defendant that has both admitted and denied the allegations leveled against it.
In one of those cases, the landmark youth-led lawsuit Juliana v. United States, the Obama administration complicated matters for its successor by admitting to many of the plaintiffs’ complaints in the government’s official response to the suit.
“They made a lot of factual concessions that I doubt the Trump administration would have agreed with,” said Yale Law School Doug Kysar. “That puts the DOJ lawyers in this uncomfortable position of having made admissions in their answer that the president is kind of openly disputing.”
This unprecedented flip with no regard to the science has significant implications for the Trump administration’s legal strategy. Commenting on the difficulties facing justice Department lawyers in these cases, Hui Chen, a former federal prosecutor and most recently a consultant to the fraud section of the DOJ’s criminal division, said, “That was precisely the kind of thing that makes it really difficult, especially I think for people in the parts of Justice where it’s more policy/politically sensitive,” said
On top of the Obama administration filing, the NCA is particularly damning. The report, compiled by scientists from 13 federal departments and agencies, says, “It is extremely likely that human activities, especially emissions of greenhouse gases, are the dominant cause of the observed warming since the mid-20th century. For the warming over the last century, there is no convincing alternative explanation supported by the extent of the observational evidence.”
In addition to Juliana v. the United States, in which 21 young people are suing the federal government for violating their right to a safe and livable climate, another suit was filed this month in federal court in Philadelphia by the Clean Air Council. It asks the court to stop the federal government from increasing greenhouse gas emissions and to halt other actions that would worsen climate change.
The Department of Justice did not respond to requests for comment on either suit, but it sets up a fascinating legal conflict within the government itself.
In an unusual move to try to lift the government out of this dilemma, the Trump administration filed a petition for a writ of mandamus, an extraordinary appeal for a higher court to derail the case before trial. It’s a rarely used tactic, and one that courts have historically been hesitant to grant.
The Ninth Circuit Court of Appeals has stayed the case pending consideration of this petition and other motions, and will hear arguments on Dec. 11.
If successful, the writ would have the added benefit to the administration of terminating discovery. Phil Gregory, lead attorney for the plaintiffs, said the administration has not been cooperative in that process.
“They were claiming that allowing discovery would be disastrous and onerous for the executive branch, but they hadn’t made any motions or filings with the district court judge asking her to tailor and restrict the discovery process,” said Kysar, who added that the government didn’t appear to be giving the judge a good faith chance to manage the litigation.
The government’s response to the discovery process so far is why Gregory said he’s focused on preserving government data on climate change.
“The government, in responding to our various document requests, has said that we don’t need to ask them for a lot of this information because it’s all available on websites,” said Gregory.
“We know that that’s just not correct.”
Gregory said that not only has information been removed, but current data and research is not getting to the public, the NCA being a high-profile exception.
“However much we were worried about scientific censorship, it turned out to be exactly the kind of document that the science-based agency personnel were supposed to produce,” said Kysar.
Kysar said he expects the government defense in the Juliana case to steer clear of confronting climate science and instead argue the courts are not the proper place to tackle climate change.
“It’s going to be all sorts of things like preemption, political question doctrine, non-justiciability,
lack of standing, it’s going to be this whole slew of largely technical procedure issues that are designed to say at the end of the day ‘Judge Aiken is not the proper governmental forum for evaluating these questions’,” he said.
“You’re not going to see the government in a case like Juliana try to turn it into a ‘Scopes Monkey Trial’ about climate science. I think they’re smart enough lawyers to realize that’s a losing battle,” said Kysar.
“The experts would be thoroughly analyzed, cross examined and critiqued for their qualifications and methodologies and what it would prove to the whole world is that the climate denialists are hucksters,” he added.
In addition to mounting a legal defense, DOJ attorneys will also have to consider the potential public relations fallout.
“The one thing we learned from the tobacco litigation is that the people might accept all kinds of harm,” said Kysar. “But when they think like you’re lying about the harm, they feel very, very differently about it.”