The 21 plaintiffs challenging the U.S. government in Juliana v. United StatesThe 21 plaintiffs challenging the U.S. government in Juliana v. United States have already gotten the case further than almost anyone predicted. Photo credit: Robin Loznak

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By Karen Savage

Although their case remains on hold while the Supreme Court reviews a last-ditch, extraordinary motion by the Trump Administration, the 21 young plaintiffs in the landmark climate suit Juliana v. United States have already taken climate litigation into previously uncharted territory.

The plaintiffs, who come from communities around the country already dealing with debilitating effects of climate change, allege that the federal government is violating their Constitutional rights to life, liberty and property by promoting a fossil fuel-based energy system that exacerbates climate change. Their suit, filed in 2015, successfully convinced a U.S. District Court judge to order the case to trial and until two weeks ago, had dodged every effort by the federal government to halt the case.

The trial had been scheduled to begin on Monday. The Supreme Court still has not ruled on the Trump administration’s request for a writ of mandamus, a rarely granted legal maneuver that overrules a lower court before a trial has even occurred.

That request was part of a persistent government effort to stop the case’s momentum to trial. It was its sixth mandamus request and second to the Supreme Court.

Why the government appears so frantic to avoid the trial has been an overriding, and unanswered, question. But part of the reason could be that the case puts the government in an uncomfortable legal position. Much of the evidence used by the young people to prove they are being harmed by climate change comes from the government itself.

In a recent motion to exclude expert testimony, the Trump administration admitted that climate change is causing “polar ice melt, earlier annual snow melt, reduced snowpack, sea-level rise, sea temperature increases, threats to coastal cities, adverse impacts to coral reefs and the life they support, more powerful storms and hurricanes, wildfires, drought, floods, and a variety of other impacts.”

Climate Change’s Awaited Day in Court

“What’s tricky for the Juliana plaintiffs is not the facts, it’s the law—is there actually a claim you can bring that the United States has this essentially fiduciary or trust obligation to future generations to protect the planet,” said Ann Carlson co-director of the UCLA School of Law’s Emmett Institute on Climate Change and the Environment. “That’s the fundamental argument of the plaintiffs and whether that has a basis in the Constitution is a tricky question.”

When the U.S. gets sued, she said, it’s typically over a technical regulation, with lawyers arguing about what kind of administrative deference someone should get or how provisions of a statute should be interpreted.

“In this case, the evidence that the plaintiffs are seeking to put on trial is much more dramatic and the plaintiffs are much more sympathetic than is typical,” Carlson said. “You have 21 kids, they’re kids who are from areas that are already being affected by climate change, you have world-renowned scientists who are going to have an opportunity to testify about what is happening with climate change and why it’s so serious and we don’t usually see that kind of evidence put on.”

The plaintiffs’ unique, overarching narrative would likely help them in a trial, said Michael Burger, executive director of the Sabin Center for Climate Change Law at Columbia University.

“That this government—and its various departments and agencies—has long known about the extraordinary risks that climate change poses both to individuals living today and to future generations,” Burger said. “[It] has fundamentally failed to take adequate actions to address those harms and has in fact made affirmative decisions that have made the problem worse. And the law provides a means to constrain government and to force action. I think that’s a very powerful narrative.”

Carlson said it was smart for the plaintiffs to frame the case as not so much about protecting the wilderness or something the plaintiffs have, but about protecting the livelihood and lives of future generations.

“I think what’s unique about how the plaintiffs have framed this case is that it’s really not ‘we have a right to a clean environment,’ but ‘we have a right to health and life,’” Carlson said.

The Government’s Case Against a Trial

The government argues the suit is an unconstitutional attempt to use a single court to control the entire nation’s energy and climate policy. It has repeatedly argued in its motions to dismiss that even undergoing a trial threatens the federal system of government.

“It is a matter of separation of powers and preserving the opportunity in our system of government for those policies to be decided by the elected branches, not the courts,” acting Assistant Attorney General Jeffrey H. Wood, lead counsel for the Trump administration, said in a speech earlier this month at a conference of the American Bar Association’s Environment, Energy, and Resources Section.

That argument had three times failed to convince the Ninth Circuit Court of Appeals to halt the case and it was also rejected by the Supreme Court in July when Justice Anthony Kennedy wrote the order. After Kennedy retired and was replaced by Brett Kavanaugh, giving the court a solid conservative majority, the next appeal to the Supreme Court resulted in a stay. Chief Justice John Roberts ordered the plaintiffs to respond to the mandamus request, which they promptly did, but the Supreme Court has not made any further ruling.

U.S. District Court Judge Ann Aiken, who was set to preside over Monday’s trial, issued an order vacating all trial dates and associated deadlines until the stay is lifted.

Burger scoffed at the claim that a trial threatens the government.

“I am in the firm view that there is no irreparable harm to the government in conducting a trial. The government conducts trials all the time—that argument strikes me as absurd and that Justice Roberts is willing to entertain it is extraordinary,” Burger said.

He said the Trump administration’s efforts to continually seek interlocutory appeals from the Ninth Circuit and the Supreme Court over a trial court’s treatment and management of a case is an aggressive strategy.

“In the appeals process, there would be the opportunity for the Ninth Circuit Court of Appeals and then possibly the Supreme Court to rule on the legal questions on whether or not there is a constitutional right to a stable climate system and whether the public trust doctrine does apply to the federal government in this context, which are the key arguments that the federal government is contesting here,” said Burger, who added that he thinks it’s extraordinary that Justice Roberts has essentially reversed Kennedy’s decision based on no new information and no change in circumstance.

Carlson said Roberts might next refer the case to the whole court, as was done when the court halted implementation of the Clean Power Plan. She said applications for stays are typically only approved by the Supreme Court if there is a “reasonable probability” the court will agree to review the merits, if there is a “fair prospect” that decisions by lower courts on the merits were erroneous, that the denial of a stay will cause irreparable harm to either side or to the public.

Philip Gregory, co-counsel for the youth plaintiffs, said he hopes the Supreme Court will see the importance of allowing the case to go to trial.

“A full factual record with all the evidence, including the climate science, will show the scope of the constitutional harms the federal government is causing these youth plaintiffs to suffer and why we need immediate action by the court,” Gregory said

The Evidence the Government Uncomfortably Admits

Many of the plaintiffs’ claims are uncontested by the federal government. In fact, much of it was produced by government agencies, including the National Oceanic and Atmospheric Administration (NOAA) and the National Aeronautics and Space Administration (NASA), which compile vast amounts of climate data and reports.

Before leaving office, the Obama administration filed the government’s official response to the case, admitting in court documents that CO2 levels have reached 400 parts per million (ppm) and that from 1850 to 2012, carbon emissions from sources within the U.S. accounted for more than 25 percent of the cumulative global emissions.

The federal government agreed that the global average temperatures are rising and that “human activity (in particular, elevated concentrations of GHGs) is likely to have been the dominant cause of observed warming since the mid-1900’s.” It admitted that in 2011, fossil fuel combustion accounted for 94 percent of all U.S. carbon emissions. It said the government has supported fossil fuel development through overseas public financing.

It agreed that “climate change is damaging human and natural systems, increasing the risk of loss of life, and requiring adaptation on larger and faster scales than current species have successfully achieved in the past, potentially increasing the risk of extinction or severe disruption for many species.”

The federal government did not contradict allegations that current and projected future greenhouse gas concentrations “threaten the public health and welfare of current and future generations” and said that threat will mount over time.

It said that sea level rise is actually slightly greater than what plaintiffs claimed.

It’s the Legal Questions That Frame the Case

If the case proceeds, Carlson said it’s possible the Trump administration will argue that it would be very unusual for a court to force the government to adopt policies that stop subsidizing fossil fuel use and cut greenhouse gas emissions.

“Whether that’s the role for a court, I think is a fundamental question that the government is asking and I think higher courts are going to have a hard time with. It’s not clear that that’s a good role for the judiciary,” Carlson said.

She also predicts the Trump administration will argue that it’s the role of Congress to enact laws that require emissions reductions.

“This is kind of an ancillary argument to the court argument—that this is not the place for a court to be deciding, that this is a political question,” Carlson said.

Burger said he anticipates the government will challenge the plaintiffs evidence indicating that the U.S. government’s decisions have contributed definitively to climate change.

“The other part will be contesting that whatever their contribution to climate change is that that is somehow responsible for the particular harms that the plaintiffs are complaining about,” he said, adding that the government will likely present evidence showing the difficulty of linking climate change to the alleged harms. Particularly complicated are impacts with compounding factors. Flooding, for example, can be caused by poor development in addition to extreme rainfall events.

Carlson said the government will also likely argue that a system based on fossil fuels has also created a lot of benefits.

“They fuel our cars and turn our lights on and the run our factories and they produce a lot of economic growth,” she said. “The government isn’t just intentionally trying to harm people, it’s also been actively trying to create wealth and economic growth and that’s what the government will argue—and there’s truth to that,” she said.

Julia Olson, co-counsel for the young plaintiffs, said the Declaration of Independence was written in order to break away from a monarchy which ‘plundered our seas, ravaged our coasts, burnt our towns, and destroyed the lives of our people’ and said U.S. founders substituted a constitutional democracy with three branches of government in place of that monarchy.

“Since the early days of the Republic, our judiciary has grown to be the last line of defense against governance that threatens the public good and destroys the lives of our people. It has even been strong enough to reckon with big entrenched systems of government that deprive the people of their rights, though not always getting it right on the first try; it has been a place to shine the light on truth and justice,” Olson said.

Hazel Van Ommersen, a 14-year-old plaintiff from Eugene, Ore., said she and her co-plaintiffs have been waiting for three years for their voices to be heard in court.

“The U.S. government is doing everything it can to silence us, all while we watch it continue to make the climate crisis worse,” Van Ommersen said.

“It just goes to show how nervous our government is about our stories and the science getting their day in court. We’re going to show the government that we are not giving up, and we need this country to come together behind us.”