Kids suing U.S. government respond to the Supreme Court stay of their climate case.The young plaintiffs in the landmark climate case against the federal government ask the Supreme Court to lifts its stay and let their trial proceed. Photo credit: Chip Somodevilla/Getty Images

By Karen Savage

The 21 young plaintiffs in the landmark climate suit Juliana v. United States filed its response to the Supreme Court on Monday, arguing they will be irreparably harmed if the case is not allowed to proceed to trial. They asked that the court lift the stay of discovery it issued on Friday and allow the trial to proceed as scheduled on Oct. 29.

Attorneys for the 21 young plaintiffs filed that response with the Supreme Court on Monday. The court had halted the case to consider a petition for a writ of mandamus filed by the Trump administration last Thursday.

“The Supreme Court has never before stopped a trial for the reasons argued by the defendants and I’m confident our brief will assure the Chief Justice that there is no intrusion into the ability of the executive branch to do its job while the Department of Justice defends this case at trial,” said Julia Olson, co-counsel for the plaintiffs. The Trump administration has argued that a trial could prevent the executive branch from carrying out its functions.

In putting the brakes on the case, Chief Justice John Roberts ordered the plaintiffs to respond to the mandamus petition, in which the federal government contends it will be irreparably harmed by the trial. A writ of mandamus is a rare legal mechanism that asks a higher court—in this case, the Supreme Court—to overrule a lower court before a trial has concluded and a verdict rendered.

The Ninth Circuit Court of Appeals has twice turned down mandamus petitions by the government to overturn the U.S. District Court, which had paved the way for the case to go to trial on Oct. 29. The Supreme Court had previously also turned down a similar petition, but signaled it could reverse course last week when it issued the stay.

Philip Gregory, co-counsel for the plaintiffs, said the case asks important constitutional questions, including issues about individual liberty.

“Even the Trump administration admits both the climate science and the irreparable harm these youth plaintiffs are facing due to climate change,” said Gregory. “A stay of trial in the District Court would severely interfere with the orderly administration and resolution of cases and would unnecessarily undermine the confidence of the American people in our Nation’s justice system.”

Attorneys for the plaintiffs contend that the young plaintiffs—not the government—will be irreparably harmed if the case does not proceed, something they say the government has already concluded.

As evidence, they point to admissions by the federal government in previously filed documents that stated “current and projected atmospheric concentrations of … GHGs … threaten the public health and welfare of current and future generations, and thus will mount over time as GHGs continue to accumulate in the atmosphere and result in ever greater rates of climate change.”

In their brief, the young plaintiffs’ attorneys wrote, “Government officials and documents already concede these children are living in a ‘danger zone’ and ‘emergency situation’ because of climate change and Plaintiffs’ experts agree.”  

They also argued the Supreme Court has consistently recognized the need to protect children from government action that harms them and said the plaintiffs’ “exposure to climate change is today causing them concrete and particularized injuries…”.

They also said the Trump administration “failed to introduce any evidence contradicting the evidence that Plaintiffs’ catastrophic harms are imminent. As such, based on the evidence before the district court, any delay in resolving Plaintiffs claims serves to prolong and exacerbate Plaintiffs’ existing injuries.”

The 21 young people who brought the suit come from around the country and argue that the federal government is violating their Constitutional rights to life, liberty and property by promoting an energy system that exacerbates climate change. They are asking for a science-based program to reduce carbon emissions and protect the climate for future generations.

The case was ordered to trial in 2016 by U.S. District Judge Ann Aiken, becoming the first court in the country to recognize a liveable climate as a Constitutional right.

“This is not an environmental statutory case under the Administrative Procedure Act. As the district court wrote, this is a ‘civil rights action’ under the Fifth Amendment of the U.S. Constitution,” attorneys for the plaintiffs wrote in their response.

The Trump administration has tried, but failed to argue that discovery and trial violate Administrative Procedure Act, which limits discovery in hearings involving regulatory violations and other administrative technicalities.  

The government has failed at repeated attempts to have the case dismissed. The second writ of mandamus petition to the Supreme Court was considered a legal ‘Hail Mary’ considering the failure of the last one. But the composition of the court has changed since Justice Anthony Kennedy turned down that petition in August.

Kennedy’s subsequent retirement opened the seat that was filled by Brett Kavanaugh, giving the court a solid conservative majority.

Despite the court’s change in composition, Olson said she remains optimistic.

“The Supreme Court and our constitutional democracy will be better served if the Supreme Court reviews this case after a final judgment, as it does in every other matter where review is granted,” she said.

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