Youth climate case plaintiffs argued again to preserve their case against the U.S. government.The youth climate case was back in court, working to survive another government attempt to dismiss. Photo credit: Robin Loznak

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By Dana Drugmand

A federal judge heard arguments on Wednesday from Department of Justice attorneys on their latest motions to sidetrack the youth-led climate change lawsuit Juliana v. United States. U.S. District Judge Ann Aiken listened to oral arguments and said she would rule promptly on two motions to dismiss considered at the hearing. Aiken has already rejected several government demands to end the case.

Another argument in this hearing centered around dismissing President Donald Trump as a defendant. The young plaintiffs have agreed to dismiss the president without prejudice, preserving the option to later bring claims against him. Justice Department attorneys, however, said they would only accept Trump dismissed with prejudice, meaning no future claims could be brought against him.

Government attorneys did acknowledge that climate change is a significant global issue and that the young people in the suit would be harmed by its damages, but they argued that the federal government is not responsible for those harms. They filed a motion for a judgment on the pleadings and a motion for summary judgment.

“It is really third parties that are contributing to this, not the United States,” Department of Justice attorney Frank Singer said in the courtroom.

But Julia Olson, co-counsel for youth plaintiffs and executive director of Our Children’s Trust, sharply disagreed:. “The United States government is the most culpable party on the planet for causing climate change.”

The young plaintiffs, 21 young people from across the country, argue that the government’s energy policies have promoted the use of fossil fuels, which drive climate change. They say this violates their constitutional rights to life, liberty and property and violates the public trust.

“My government continues to promote the development of fossil fuels even though they know that it threatens my life and my home,” said Jayden Foytlin, a 15-year-old plaintiff from Rayne, La. “They opened up the Gulf of Mexico for gas leasing. The Bayou Pipeline is going to pass through most of South Louisiana, including my town. These actions are only going to further climate change and worsen the storms and flooding in my area.”

Aiken cited previous cases where constitutional claims were brought for complaints about prison systems, foster care systems and mental health facilities. She asked in this case whether the survival of humanity was the core issue in Juliana. In her initial order that the case proceed to trial in November 2016, Aiken wrote, “I have no doubt that the right to a climate system capable of sustaining human life is fundamental to a free and ordered society.”

Despite the constitutional claims, the government has argued that the case’s complaints should be dealt with under the Administrative Procedure Act, where agency actions can be challenged, instead of in court because the Environmental Protection Agency has jurisdiction over greenhouse gas emissions. Government attorneys also argued that challenging U.S. energy policy through the courts violates the separation of powers and that plaintiffs do not have standing to sue.

“This administration has done nothing but obfuscate and bring up excuses,” said Jacob Lebel, a 21-year-old plaintiff from Roseburg, Ore.

“It is clear that the Trump administration is desperately trying to avoid allowing the climate science to be presented at trial,” added Philip Gregory, co-counsel for the youth plaintiffs. The case is scheduled for trial starting October 29.

The Ninth Circuit Court of Appeals is also expected to decide on the government’s second request for a writ of mandamus—an extraordinary tactic to ask a court to overrule a lower court before a case has concluded. The Ninth Circuit rejected the first request in March. The Ninth Circuit on Monday denied the government’s motion for an emergency stay on discovery and trial.

The government then filed an application with the Supreme Court on Tuesday for a stay on discovery and trial. The Supreme Court has yet to issue an order, but Justice Anthony Kennedy has asked the plaintiffs to respond with a briefing by Monday.  

“It is extremely unusual for one case to have simultaneous motions pending before the District Court, the Ninth Circuit Court, and the Supreme Court,” Gregory said. “These important liberty interests must be heard before our climate crisis passes the point of no return.”