Posted on August 8, 2018 by CSPW Senior Climate Policy Analyst Anne Polansky, introducing guest author Joel Stronberg
CSPW has been following with great interest the ups and downs, ins and outs of the long and arduous pathway 21 youth plaintiffs have been trekking for three years, in a sustained effort to see their legal case against the US government be tried in court. We last wrote about this in December 2016: Why Are 21 Kids Suing the Federal Government, and Why Does It Matter? At issue is whether or not it can be established that the US government, over time, has taken a set of affirmative actions that have exacerbated climate change causes and impacts, and thus failed to protect “public trust” resources for this young generation and generations to follow. Their dogged determination and success in overcoming a set of serious hurdles has paid off: the court trial will commence on October 29, 2018, to be heard before US District Court Judge Ann Aiken in Eugene, Oregon. In both the climate change world and the legal world, this case is a big, big deal. “This suit is really the first time Global Warming is being fully heard in a High Court of the Land,” notes a contributor to Forbes. First-time CSPW guest author Joel Stronberg writes about his perspectives on this seminal legal action, technically known as Juliana et al v. U.S. et al and in social media circles as #YouthvGov.
Stronberg and Polansky worked together throughout the 1990s promoting domestic markets for renewable energy and sensible, sustainable energy policies at the state and national level.
Juliana v US: Getting Ready to Rumble
by Joel Stronberg, cross-posted from Civil Notion
Three strikes and the Trump administration is now out—or more accurately “in.” Trump and company have now been told by the US Supreme Court in a very brief 5-4 decision that they must stand in open court and defend themselves against the charge they are denying the 21 youthful clients in the case their constitutional right to a habitable environment.
The High Court’s decision is of historical significance and accurately cast in terms of firsts and lasts. It will be the first-time climate-science is debated in open court—likely the only forum in these partisan times in which global warming can be honestly and fairly debated.
The plaintiffs’ victory in the case would be the first in the US to establish a constitutional right to a habitable environment and place upon the federal government the responsibility of holding in trust the nation’s natural resources.
The July 30th decision may have been the last Supreme Court case in which Justice Anthony Kennedy will have tipped the decision in favor of the environment, much as he did in Massachusetts v EPA and Rapanos v US—the cases that led respectively to the Clean Power Plan (CPP) and the Waters Rule of the US (WOTUS). WOTUS and the CPP are among the most litigated environmental regulations in history.
I say may have been because Monday’s decision didn’t indicate how each of the justices voted. Given the history of each of the justices and the need for five of them to have agreed on the decision, it is a reasonable guess. The decision read in part:
The Government’s request for relief is premature and is denied without prejudice.
The High Court’s decision followed two by the U.S. Court of Appeals for the Ninth Circuit that similarly refused stopping the suit from going forward or summarily dismissing it even before it was heard in open trial in the Oregon Federal District Court.
It is easy enough to appreciate the Administration’s desperately trying to avoid allowing the climate science to be presented at trial. Should the plaintiffs prevail, federal support for fossil fuels in its many forms, e.g., tax incentives and access to federal onshore or offshore properties for exploration and extraction, would need to be phased out and replaced by a clean power plan on steroids.
No longer a matter of party loyalties an established constitutional right to a sustainable environment would be to partisan politics what Alexander’s blade was to Gordius’ obdurate knot. The establishment of a constitutional right to a habitable climate would call into question every effort made by the Trump administration to roll back the nation’s environmental laws to pre-Nixonian times.
It doesn’t stop there, however. A decision for the plaintiff’s that also places the nation’s national resources like land, water, and forests under the trusteeship of the federal government would stop Trump’s or anyone else’s administration from giving away the Grand-Staircase-Escalante, Bears Ears and other federal lands and landmarks or opening them up to commercial exploitation. Neither would it stop there.
Should Juliana cross final finish-line—a Supreme Court decision upholding a lower court’s finding in favor of the plaintiffs–it may be argued in the future that the nation is obligated to rejoin the global community by signing on to international climate treaties and accords.
These and other possibilities have generated an enormous amount of excitement within both the climate defending and denying communities. It all depends, of course, on how the High Court’s decision will read after all the dust settles.
The excitement of the environmental community is being tempered—rightfully—by the deniers reminding them that the High Court’s decision was not without words of caution and warning:
The breadth of respondents’ claims is striking, however, and the justiciability of those claims presents substantial grounds for difference of opinion. The District Court should take these concerns into account in assessing the burdens of discovery and trial, as well as the desirability of a prompt ruling on the Government’s pending dispositive motions.
As a first of its kind, Juliana naturally pushes the bounds of existing case law, just as Brown v Board of Education and the cases leading up to it were thought to do. It is in the nature of landmark legal decisions to do.
The denier community finds solace and hope in these words because it reinforces the notion that just because the Court is letting the case go to trial, it should not be assumed that the majority of justices believe the case can win on its merits. They are equating it with the stay of the Clean Power Plan (CPP) rule in 2016.
The decision to stop EPA from taking any action to implement or enforce the CPP in advance of decisions made in West Virginia v EPA and other pending cases challenging the Plan on its merits was a surprise. It is unusual for the High Court to block a federal regulation before it is in force. A stay is not usually granted unless the justices believe the rule is flawed and won’t, in the end, stand up to judicial scrutiny. The Court in those cases is looking not to waste more time or—worse—to have an industry go to the expense of compliance and the rule struck down, as happened in Michigan v EPA having to do with mercury emissions.
There is no denying the majority’s concerns over the merits of the case, even if the tone of the deniers’ reminders seems a bit smarmy. The Court’s caution is not just on the legal and constitutional foundations of the plaintiffs’ claims but in the trial court’s ordering the government to comply with the discovery demands, which include depositions of ranking government officials and the gathering of a lot of paperwork.
Throughout all their efforts to have the case booted from the courts, the government’s attorneys have been–what’s the word—whining about all the work they would have to do to comply with plaintiffs’ rightful request to see the scientific evidence on which the government is basing its defense. There are of course substantial questions of law, the court’s ability to redress the harms factually claimed as the consequence of the government’s actions and inactions, and the government’s own ability to order the President and Congress to do what would be required. (For additional information on these issues see Juliana v US: For Children of All Ages and other articles on Civil Notion.)
Of all the reasons to deny the plaintiffs’ right to be protected from the ravages of global warming, the inconvenience of the government—particularly the Trump administration—seems petty given the known consequences of climate change and the heft of the constitutional claims at stake here. Reader’s should note, however, that the Obama administration was the original defendant in the case and it was none too willing to roll over in this matter either because of the potential breadth of the decision.
The Trump administration has repeatedly accused the trial judge, Ann Aiken, of letting the case go forward, saying she had endorsed “a never-before-recognized fundamental right to a particular climate system that lacks any support in the Constitution, this court’s precedents, or this nation’s history and tradition.” The Trumpians are surely basing the accusation on an earlier order, in which she expressed no doubt that the right to a climate system capable of sustaining human life is fundamental to a free and ordered society.
Whether Judge Aiken thinks it is a right to be guaranteed by the US Constitution is another matter. To-date, the trial court’s rulings have been affirmed by the U.S. Court of Appeals for the Ninth Circuit and now the nation’s highest court. The Administration’s accusation is, in my opinion, evidence of their disdain for the rule of law and the enduring strength of our legal system. I am confident that should Judge Aiken let a personal opinion cloud her legal judgment or a faulty legal opinion force the government to do things oughtn’t to be done that the judges and justices above her in our nation’s legal system will rectify the situation.
What does age have to do with it?
I have asked this question often in my life—both when I was younger and now that I’m older, although for much different reasons. As an attorney and political strategist, I perfectly understand the significance of the ages of the Juliana plaintiffs—all of whom were under the age of majority when the case was filed in 2015, none of whom I hope will be my age by the time it is finally decided. Justice is not always swift.
The age of the plaintiffs is not inconsequential in terms of the cumulative harms they are likely to endure over the course of their lives—certainly much greater than I will at this point in my life. Their having to face decades of an increasingly rapid rate of warming goes to the question of damages as well as having a certain amount of PR value.
There is no question the youth of the plaintiffs also has media appeal. Would the same case brought by Generation X-ers receive the same amount of media attention? Probably not. The attention of policymakers and voters is not without value. One of the things that I, climate deniers and the conservative justices now on or soon to be on the Supreme Court can agree on is that Congress needs to act—either at the direction of the court, in response to constituent demand or in response to the growing number of natural disasters. Each day of delay increases the frequency of forest fires, droughts, monsoons, the melting of ice caps, the loss of species and increased human mortality and morbidity.
The plaintiffs’ ages, however, have a distinct downside—although for no substantive reason. Whether one is 16 or 72 the questions of climate change and a person’s right under the US Constitution is serious business. The pursuit and preservation of those rights are fundamental to our system and a source of its enduring strength. It is to be respected.
Yet, there are those who use the age of the Juliana plaintiffs to denigrate the case’s importance and dismiss its seriousness. I speak here mostly of how some climate deniers have “flipped” the case off as child’s play, or a case of exploitation by unscrupulous environmentalists and their attorneys. However, climate-science believers are not immune to speaking of the case in terms of a cute human-interest story. This is some serious shit we’re talking about people.
A reporter for the Daily Caller wrote last December.
Environmentalists and regulators have increasingly used children as reasons to fight global warming. Former President Barack Obama, for example, used his own daughter’s asthma attacks to personalize the climate debate. Environmental groups have jumped on this bandwagon and routinely claim global warming will make asthma and other respiratory illnesses much worse.
Our Children’s Trust’s campaign is no different. Olson’s inspiration for inviting children to bring lawsuits stems from her colleague Mary Christina Wood, a University of Oregon law professor who first introduced global warming as a brand of the public trust doctrine in law.
Wood and Olson’s goal is to force massive reforestation and carbon capture that would theoretically return the planet to a sustainable level of atmospheric carbon dioxide, which they believe is 350 parts per million. The idea is grounded in the internationally recognized principle known as the Public Trust Doctrine, which argues a government can be held liable for damaging natural resources that are held in public trust.
The Heartland Institute, according to the Daily Caller, is to be congratulated for its “always being public about its ultimate goals—to keep global warming alarmists from winning the public debate.” Marc Morano, executive director of Climate Depot, a project of the Committee for a Constructive Tomorrow and a frequent presenter at Heartland events, says [the] environmentalists’ use of children to enact climate policies they couldn’t get through legislation is just another underhanded tactic activists employ. Morano continues.
Using kids to fight the climate change battles is disgusting, but sadly expected. A child-based lawsuit brings in media, money, and attempts to prey on fears of ‘the children’s’ future ruined by ‘climate change.
These and other comments follow in the line of those who opposed the message of the student survivors of the Marjory Stoneman Douglas High School shootings. Rather than an open and respectful debate about gun control, some gun advocates chose to defend themselves by attacking the children who made it out alive—accusing them of what? Being too young, naive, stupid to know the real truth of the matter and that guns kill people?
Perhaps I am missing their point, and their fingers were being pointed at the students’ parents or guardians for allowing their children to be used by unscrupulous actors. When I was 16, I resented being told I was too young to understand what the right to an education was about or that I didn’t have any clue about when I was being used. At 19 and 20 I disliked being told that with age I would understand why some of my professors were summoned to Washington to answer the questions of the House Committee on Un-American Activities for what they were forcing into my unsuspecting head.
Today’s youth are way more sophisticated than I ever was at their age. Why shouldn’t they be trusted to weigh the scientific evidence and come to a reasonable conclusion?
At 72, I am certain that truth is neither age-dependent nor the right to speak up age constrained—especially in the US. My question to those who deny the science behind the claims of the Juliana plaintiffs is not why do you believe it false, but why are you afraid to have it debated in open court—an atmosphere governed by established rules of evidence and as free from arrogation as any forum in today’s partisan world?
Look for what may be the trial of the century beginning October 29th in the U.S. District Court for the District of Oregon—Judge Ann Aiken presiding.
Joel Stronberg, Esq., of The JBS Group is a veteran clean energy policy analyst with over 30 years’ experience, based in Washington, DC. Visit www.civilnotion.com; email: email@example.com
CSPW Senior Climate Policy Analyst Anne Polansky has 30 years of experience in public policies relating to energy and the environment, with a strong focus on climate change and renewable energy. She is a former Professional Staff Member of the House Committee on Science, Space and Technology.