The federal government succeed in temporarily halting a high-profile climate-change lawsuit — just days before young activists were set to argue at trial that the government has violated their constitutional rights through policies that have caused a dangerous climate.
The U.S. Supreme Court last Friday temporarily blocked the trial for Julian vs United States, which was set to begin Oct. 29 in federal court in Oregon, until lawyers for the young people provide a response and the high court issues another order.
The Supreme Court refused to toss the lawsuit in July, calling it “premature.”
The delay marked a victory for the government, which under the Obama and Trump administrations has tried to have the case dismissed. An expert says the Trump administration tried again before the Oct. 29 trial as the court shifted to the right with the confirmation this month of Brett Kavanaugh.
Kavanaugh, who objects to governmental regulation of businesses, replaced the more moderate Anthony Kennedy.
Justice Department lawyers argue that the claim would redirect federal environmental policies through the courts rather than the political process.
Julia Olson, a lawyer representing the young plaintiffs and chief legal counsel for Our Children’s Trust, expressed confidence that the trial will move forward once the justices receive their response, which is due today.
The Supreme Court has recognized in other cases that review of constitutional questions “is better done on a full record where the evidence is presented and weighed,” she said in an email. “This case is about already recognized fundamental rights and children’s rights of equal protection under the law.”
The 21 young plaintiffs, who are now between 11 and 22 years old, originally brought the suit in Oregon in 2015. They have said their generation bears the brunt of climate change and that the government has an obligation to protect natural resources for present and future generations.
They’ve also argued that government officials have known for more than 50 years that carbon pollution from fossil fuels was causing climate change and that policies on oil and gas deprive them of life, liberty and property. They say the government has failed to protect natural resources as a “public trust” for future generations.
The lawsuit seeks an order for the government to stop permitting and authorizing fossil fuels, quickly phase out carbon dioxide emissions to a certain level by 2100 and develop a national climate recovery plan that that would reduce carbon-dioxide emissions to 350 parts per million (ppm) by 2100, down from more than 410 ppm today, and stabilize the climate system.
“The latest attempt to get the U.S. Supreme Court to stop the trial does not appear to be based on any new evidence or arguments. The only new element is an additional Supreme Court justice,” said Melissa Scanlan, a professor at Vermont Law School, who is not involved in the case.
Scanlan said the Trump administration is trying to avoid “what they’re expecting to be a 50-day trial focused on climate disruption.” The trial in Eugene, Oregon, was expected to wrap up in January.
The federal government has argued in court filings that the young people don’t have standing to bring the case and the issues should be left to the political branches of government, not the court.
District Court Judge Ann Aiken dismissed Donald Trump as a defendant, but she rejected arguments that the young people can’t bring the case. She said they made specific allegations of “personal injuries caused by human induced climate change,” including extreme weather events in 2016 and 2017 that led to flooding in Louisiana.
Scanlan, the law professor, said the plaintiffs will need to show that the government created a danger, that they knew they created that danger and they “with deliberative indifference” failed to prevent harm.
Jeffrey Wood, acting assistant attorney general for the Justice Department’s environment and natural resources division, said officials “firmly believe there is no legal basis for this case to be heard in federal court.”
The lawsuit “is an unconstitutional attempt to use a single court to control the entire nation’s energy and climate policy,” he said, according to prepared remarks for a speech he gave at a conference in San Diego. “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.”