By Karen Savage
A three-judge panel of the Ninth Circuit Court of Appeals on Tuesday appeared skeptical of the courts’ role in dealing with climate change in the landmark constitutional climate case brought by 21 young people against the U.S. government. But the kids’ attorneys argued in a pivotal hearing that they are only asking the court to apply rights already laid out in the Fifth Amendment.
The hearing, held in Portland, Ore., will decide whether the case, Juliana v. United States, continues on toward trial. The suit has been vehemently opposed by the Justice Department since it was filed in 2015, and this hearing could grant the government an extraordinary measure by granting an appeal before the trial even began.
Judges Mary H. Murguia and Andrew D. Hurwitz of the Ninth Circuit Court of Appeals, and Josephine L. Staton of District Court for the Central District of California presided over the hearing and are expected to issue their ruling in the next few months.
Hurwitz summed up the issues the court is wrestling with, primarily whether the courts should intervene in a subject ordinarily left to the executive and legislative branches.
“I’m sympathetic to the problems you point out,” he said. “But you shouldn’t say this is just an ordinary suit. … You’re asking us to do a lot of new stuff, aren’t you?”
Julia Olson, lead attorney for the young plaintiffs, disagreed.
“It would be the first time that it would have been done, your Honor, as to this factual context where the government admits the monumental threat to people and to lives and that their acts in promoting fossil fuels and allowing for the extraction and all the affirmative things they do cause the emissions that are a substantial cause of climate change,” Olson said.
Hurwitz pushed back on Olson’s assertion, saying it appeared as if the plaintiffs were asking the court to break new ground by allowing the case to continue.
“The issue here is whether this branch of government, embodied by the three of us today, has the ability to issue the relief that your clients seek,” said Hurwitz to Olson during her arguments, adding that he doesn’t doubt that Congress and the president could give the plaintiffs the relief they seek.
“I don’t think Congress and the president ever will,” said Olson in response.
“Well then we may have the wrong Congress and the wrong president. That’s occurred from time to time over history,” said Hurwitz.
“You present compelling evidence that we have a real problem. You present compelling evidence that we have inaction by the other two branches of government. It may even rise to the level of criminal neglect. But the tough question for me is do we get to act because of that.”
The plaintiffs allege in the suit that the federal government is violating their Constitutional rights to life, liberty and property by promoting an energy system that exacerbates climate change. They also say the government is failing to protect essential public trust resources and are asking for a science-based program to reduce carbon emissions and protect the climate for future generations.
The federal government has tried numerous times to shake the case since it was first filed in 2015. The Ninth Circuit has rejected four petitions for an extraordinary writ of mandamus by the government and the Supreme Court has rejected additional requests. The Ninth Circuit eventually granted a final, last-ditch effort to hear a pre-trial appeal late last year, and this hearing was their chance to hear oral arguments from both sides.
“The outcome of this hearing will determine the future of our case and whether or not there will be justice for young people in this country, who are disproportionately impacted by the climate crisis,” said Vic Barrett, a 20-year-old plaintiff from White Plains, NY.
“Our fundamental constitutional rights, including our right to a climate system capable of sustaining human life, are being violated by our government,” said Barrett.
In November 2016, U.S. District Court Judge Ann Aiken became the first to rule that “the right to a climate system capable of sustaining human life is fundamental to a free and ordered society” and ordered the case to trial.
Aiken’s ruling prompted the National Association of Manufacturers (NAM), the American Fuel & Petrochemical Manufacturers (AFPM), and the American Petroleum Institute (API) to intervene on behalf of the federal government, but the industry groups quickly withdrew after Judge Coffin ruled that the groups must intervenors take a joint position on climate science.
Attorneys for the Trump administration contend there is “no fundamental constitutional right to a ‘stable climate system’ and maintain that because “global climate change affects everyone in the world,” the plaintiffs are not suffering from a legally actionable injury, but from “generalized grievances.”
“This action is one that appears to enforce the Constitution, but in reality it’s nothing more than a direct assault on the constitutional design,“ said Jeffrey Bossert Clark, lead attorney for the Department of Justice.
“One district court judge in the country is acting to impose a plan on the entire executive branch in the country, to tell them to stop having inaction on climate change, to do additional things to combat it,” Clark said. “That’s sort of something that’s radical, its anathema.”
The government also maintains that even if that right existed, and the plaintiffs have been harmed, the government is not responsible.
Plaintiffs say the actions by the Trump administration are continuing to harm them by further damaging the climate.
“The U.S. government has known for nearly four years that my co-plaintiffs and I are being personally harmed by their actions,” Barrett said. “Yet it continues to use public resources for fossil fuel extraction and production, and give legal sanction to the national fossil fuel energy system, completely abdicating its responsibility to protect us from the dangers it helped perpetuate.”
The government has argued that the suit falls under the Administrative Procedures Act (APA), which outlines procedures for judicial review when plaintiffs make claims against a federal agency, and said that the “plaintiffs have refused to comply with the requirements of the APA.”
That premise was rejected by Aiken, who said that the APA does not address the plaintiffs’ claims because they seek review of “aggregate action by multiple agencies, something the APA’s judicial review provisions do not address.”
In a trial, the young plaintiffs plan to call expert climate science witnesses, as well as experts in attribution science, who have researched how much of global warming can be attributed to particular countries and industries.
Much of the evidence already submitted by the young plaintiffs comes from the government itself, with extensive research into climate impacts coming NASA and NOAA, as well as the release last year of the Fourth National Climate Assessment.
In her closing arguments, Olson asked the court to lift the stay and remand the case to trial.
“When our great grandchildren look back on the 21st century, they will see that government sanctioned climate destruction was the constitutional issue of this century,” Olson said.
“We must be a nation that applies the rule of law to harmful government conduct that threatens the lives of our children so that they can grow up safe and free and pursue their happiness. That is what the founders intended.”