Young People Are Poised to Take the US Government to Court Over Climate Change

By Kyla Mandel, ThinkProgress

21 December 18

What you need to know about the historic climate trial that could have its day in court in 2019.

oung people are on the brink of bringing the Trump administration to court in an historic climate trial that may finally have its day in court in 2019.

The landmark lawsuit, brought by a group of 21 children and young adults, argues that the government is violating its obligation to current and future generations by failing to preserve a clean atmosphere. A final decision could shape the future of climate litigation for years to come.

Though the trial was supposed to begin at the end of October, the Trump administration has successfully delayed the proceedings — arguing, among other reasons, that the judicial branch is not responsible for directing climate policy.

The case is currently on hold. But that could change in the new year, as next month the U.S. Ninth Circuit Court of Appeals expected to issue its decision on how the case should proceed — and so far it has always ruled in favor of the case going forward.

In what Our Children’s Trust, the group that filed the lawsuit, refers to as the government’s “continued and relentless attempts to prevent trial,” the Trump administration has gone to the Ninth Circuit five separate times about this case before it has even been heard. Typically, a defendant would go to the appeals court only after a final judgement is issued, but the government hopes to obtain permission for an early appeal.

The latest delay came in late October, as federal lawyers urged the Supreme Court to stop the trial just nine days before it was set to begin. The Court temporarily put the case on pause while it considered the emergency request, only to then decide on November 2 to allow it to go forward.

In response, the Justice Department filed two separate motions, one with the U.S. District Court for the District of Oregon — where the case is set to be heard — and one with the Ninth Circuit Court of Appeals.

At the end of November, U.S. District Court Judge Ann Aiken maintained her position that appeals should take place after the case is heard, not before. So the ball is now back in the Ninth Circuit’s court.

While it’s likely a decision from the Ninth Circuit will come in January, no one knows exactly how it may rule. Previous rulings have been in favor of the case proceeding to trial, however it could also decide to move forward as an “interlocutory appeal” (when an appellate court reviews an aspect of the case before it goes to trial), or as a petition for writ of mandamus (where it asks a lower court to review their decision).

So, as the year comes to a close, the lawsuit remains in limbo.

According to the plaintiffs, if the case is put on hold by the Ninth Circuit should it proceed with an early appeal, it could take until 2021 before it ever goes to trial — “well beyond the time frame needed to begin rapid emission reductions to avoid runaway climate change,” according to Our Children’s Trust.

“We’ve known about the dangers of climate change for over 50 years and can’t wait two more years to go to trial to stop it,” Levi D., an 11-year-old plaintiff from Satellite Beach, Florida, said in a statement in December. “I filed the lawsuit when I was 8 years old and now I’m 11, and now we might have to wait until I’m 14. I’m seeing the effects of climate change happen all around me in Florida, we don’t have two more years to lose.”

“This is about my future and the future of our youngest generations. This is about fundamental constitutional rights of children. We are simply asking for our right to be heard,” Barrett continued. “Our Government exists to hear us and protect us.”

“The lengths my own government is going to to get this case thrown out and avoid trial is absurd and offensive,” Vic Barrett​​, a 19-year-old plaintiff from White Plains, New York, said in an earlier statement.

If the Ninth Circuit decides to lift the stay on proceedings, the case would likely begin around March 2019.

Barring a surprising ruling from the Ninth Circuit, or another successful last-ditch effort from the Trump administration, here’s what you need to know about the groundbreaking case — from the big questions to what’s at stake.

How long will the trial take?

The trial itself is expected to last about six weeks or longer. Assuming it proceeds within the next couple of months, a final decision from the judge would probably come in mid-2019 depending on how things play out.

But that’s not the end of it. According to the plaintiffs and Michael Burger, director of the Sabin Center for Climate Change Law at Columbia University, a final decision won’t come until late 2020 or early 2021.

This is because after the judge issues their decision, the government or the plaintiffs will likely appeal. Appeals could potentially reach as high as the Supreme Court, which means a final answer is expected to take a few years.

Will President Donald Trump appear in court?

The short answer is no.

During a previous legal back-and-forth in October, when Judge Aiken said the case could proceed, the ruling did make one change: Aiken agreed to remove President Donald Trump as a defendant. (The Juliana v. United States lawsuit was originally brought in 2015 against President Barack Obama, who was then replaced with Trump after the 2016 presidential election.)

This decision, however, doesn’t represent a significant change, according to Burger. Whether or not Trump, or any president, is named in their official capacity is “kind of irrelevant to the outcome of the case, and to the merits of the case,” Burger told ThinkProgress.

Why? “Because the plaintiffs’ argument here is that there’s a long history of government action and inaction that has contributed significantly to climate change, and amounts to a violation of individual rights,” Burger said.

Some of these actions include the current administration’s efforts to roll back environmental protections, lease public lands to oil and gas interests, and generally promote fossil fuel development. “But those actions are not tied to Trump personally,” said Burger, “so the issues will still be litigated regardless of whether he’s named as a defendant.”

Will there be any last minute changes to the case?

In addition to the government trying to avoid a trial altogether, the Trump administration has also tried to exclude some expert witness testimony from climate researchers who will appear on behalf of the plaintiffs.

Among the six climate experts who will present on behalf of Our Children’s Trust is former NASA scientist James Hansen — known for his prescient 1988 Senate climate change testimony.

Such proposed expert testimony is “not necessary,” the government argued, adding that it would be “an inefficient use of judicial and party resources.”

The reasoning behind this is essentially that the administration is planning to say during trial that it accepts the science on climate change. And for that reason, there will be no need to discuss “in particular, the effects of greenhouse gas (GHG) emissions and climate change” during the trial because “these are not in dispute.”

But there’s a problem with this, according to Philip Gregory, co-lead counsel for the youth plaintiffs. In October, as an alarming U.N. climate report came out and Hurricane Michael hit Florida, Trump proceeded to publicly reject mainstream climate science, claiming “it could very well go back” to a stable temperature and that scientists claiming otherwise have a political agenda.

“This is another example of the president saying one thing in the media and another thing in the court room,” Gregory told ThinkProgress.

Not only that, but “the climate science underpins the entire case,” Gregory added. “We want to make sure that the record is very clear, because the government is going to argue that it had no role in causing the climate crisis.”

“It’s important for the court to receive evidence in the trial about how wide-sweeping [climate change] is and the effect,” he continued, “so the judge’s order will be properly informed and based on the science.”

If a trial happens, what should we watch for?

A central part of this case rests on the ability to link specific impacts felt by the plaintiffs to climate change and the government’s action or inaction.

In other words, plaintiffs will try to prove that federal actions — whether it’s promoting fossil fuels or rolling back environmental protections — have made climate change worse, and that climate change has had a negative impact on individuals, whether that’s from storms or worsened asthma.

“I think one of the things the federal government is likely to push hard on is the idea that there are confounding factors… to any of the injuries that plaintiffs are complaining about, that need to be fully accounted for in determining whether climate change is really the cause of their harms,” said Burger. “And then whether the U.S. government’s contributions to climate change can reasonably be considered a significant or material factor in causing those harms.”

For example, the science on sea level rise and its link to climate change is “highly certain,” said Burger, but it’s far more difficult to definitively connect sea level rise to a particular harm felt by one or more people. This is because there are a variety of other factors at play that may contribute to someone’s vulnerability, such as local land use decisions, individual choices about where to live, natural resource management decisions, and so on.

Attribution science more broadly is playing a key role in other lawsuits against fossil fuel companies regarding their responsibility for climate impacts. For cities and counties suing ExxonMobil and other oil majors, plaintiffs will have to be able to prove in court that a particular nuisance — such as sea level rise caused by carbon emissions — can be traced back to the actions of an individual company.

This question of responsibility has been a focus of scientists and researchers for several years. In order to link emissions to specific companies, researcher Richard Heede of the Climate Accountability Institute set up the Carbon Majors Database in 2013. This research is cited in many of the cities’ lawsuits against oil companies.

While these cases are still waiting to be heard, they may turn to the youth climate trial for inspiration should it go forward. How each side argues its case regarding who should be held responsible for climate change and the resultant impacts will be critical; the final outcome could shape how others make their case down the road.

However, attributing blame to a government versus a company is not the same thing, Burger noted, because companies are “operating under the permission of governments.”

From Burger’s perspective, “the expert testimony that we’ll see, some of which has already been submitted in expert reports from the two sides in this case, will be illuminating, if not determinative, of how other parties will go about presenting their arguments in other cases.”

What is the government’s legal strategy?

Questions over attribution are expected to be central to the Department of Justice’s strategy during the trial. The ultimate goal is to argue that the plaintiffs do not have legal standing to bring the case to trial.

The government is not expected to debate whether or not climate change is happening. Instead, it has been reported that federal attorneys will claim it is impossible to definitively link the government to specific climate impacts felt by the plaintiffs.

Federal attorneys will reportedly argue that the government has not undermined the plaintiffs’ rights — as they claim it has through its failure to provide a safe and livable climate to current and future generations — and even if it has, fixing the damage would be infeasible.

In a statement to E&E News, Jeffrey Wood, former acting assistant attorney general for the Environment and Natural Resources Division at the Justice Department, said, “This lawsuit is an unconstitutional attempt to use a single Oregon court to control the entire nation’s energy and climate policy.”

Instead, as Burger explained, the government will seek to argue that other factors beyond its control are to blame.

But, as Gregory counters, the government has not only known about the impacts of climate change for decades but that future generations specifically would bear the brunt — and yet, it did not scale back the use of fossil fuels.

“Let’s say I say to you, I know I’m going to harm you, and I go ahead and do it. You would say, you can’t do that. This is just basic,” he said. “You can’t knowingly harm someone and expect to get away with it for decades without a court coming in and telling you to stop it.”

What should we look for in a final verdict?

In the end, everyone will be watching for an answer to the question of whether the government can be held responsible for climate change and its damaging impacts.

Regardless of when or if the trial goes ahead, however, there’s already been one significant legal ruling from Judge Aiken: the decision that “there is a substantive due process right to a stable climate system and that there is a federal public trust doctrine that does apply to the federal government in this context,” said Burger.

And so far, attempts to review this legal decision have been refused (which is not to say it couldn’t be appealed later).

At the end of the trial, the most significant decisions will lie in the court’s findings of fact regarding who is to blame for climate change, how much the federal government is responsible for climate change, and whether and how individual plaintiffs can link their harms to climate change in general as well as to a specific defendant.

Unlike the judge’s final ruling, these findings of fact are more likely to survive any appeals process.

“The court’s findings of fact, unlike a legal ruling, are subject to a much more deferential standard of review,” Burger said. “Findings of fact would need to be clearly erroneous for an appeals court to overturn them.”

These findings of fact can also help inform future cases. Other judges may reach their own factual determinations, but this case could set important standards. As Burger put it, “The court’s decision here in terms of the factual findings will not be precedential in the sense that other courts will be bound to follow them, but they will be precedential in the sense that they’ll set a precedent that other courts will want to review in reaching their decisions in other cases.”

So what are the plaintiffs hoping for (other than that the trial will take place)? “We hope that Judge Aiken issues an order declaring that the federal government has violated the rights of these youth plaintiffs,” said Gregory.

“We hope she issues an order requiring the federal government to develop and implement a plan to achieve science-based targets, like less than 350 parts per million [of carbon in the atmosphere],” he said, rather than a 1.5°C warming limit like is given under the Paris Agreement, which Gregory described as a “politician-based target” — as many scientists have warned, even 1.5°C of warming will be too much.