Kids’ Lawsuit Over Climate Change Faces Big Test In Federal Court

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By Abby Smith

The fate of what some legal observers are calling the “the most important environmental case in the country” and even “the biggest case on the planet” now rests with three federal appellate court judges.

The U.S. Court of Appeals for the Ninth Circuit will hear oral arguments Dec. 11 and weigh whether a novel climate change lawsuit, Juliana v. United States, should continue to move forward.

If ultimately successful, the litigation—brought in 2015 by 21 youth plaintiffs ranging in age from 10 to 21—could force the government to develop a comprehensive plan to reduce greenhouse gas emissions across multiple sectors.

“If this case goes forward, that will have a huge impact. It will become the most important environmental case in the country, arguably in the world,” James May, a professor of law and chief sustainability officer at Widener University, told Bloomberg Environment. “It will be the only place in the United States where there’s a court that’s hearing arguments about the future of the United States’ climate policy.”

Public Trust

The Juliana case tests legal theories on climate change related to constitutional rights and the public trust doctrine. Under that doctrine, the government holds essential natural resources such as land, water, or wildlife in trust for its citizens. Climate litigators, including the youth plaintiffs in this case, argue that obligation includes the atmosphere.

But for the case to go to trial, it must now get the OK from the Ninth Circuit—after Trump administration attorneys, in a rare move, asked the appellate court to go over the head of the district court judge in Oregon hearing the case and kill the lawsuit outright.

“What we are advocating is that there be a trial where the science is put before the court,” said Phil Gregory, an attorney with Cotchett, Pitre & McCarthy LLP in California who represents the youth plaintiffs.

“All these kids want is their day in court to show, as the federal government has admitted, that they are facing catastrophic harms unless the court does something about it,” Gregory told Bloomberg Environment.

But others caution that putting the court in the “driver’s seat” would be impractical and that the novel legal theories put forth by the youth plaintiffs are “ill-suited” to meaningfully address the issue of climate change.

“I think it really could open up a Pandora’s box,” said Avi Garbow, an attorney with Gibson, Dunn & Crutcher LLP in Washington and former EPA general counsel in the Obama administration.

Legal Arguments

The kids’ case is spearheaded by the group Our Children’s Trust, which, beginning in 2011, has brought similar litigation at the state and federal level with mixed success. At the heart of the Juliana suit are two arguments.

First, the youth plaintiffs claim there is a constitutional right to a livable climate. The government has violated that right, they argue, by not taking steps sufficient to reduce greenhouse gases to 350 parts per million—which their 2015 complaint argues science shows is the “maximum safe level” of carbon dioxide in the atmosphere “required to restore a stable climate system.”

Second, they argue the government has shirked its duty under the public trust doctrine to protect and conserve the nation’s natural resources, including the atmosphere.

That argument originates from the “atmospheric trust litigation” approach developed by Mary Wood, a professor of law and director of the University of Oregon’s Environmental and Natural Resources Law Center.

“It’s kind of a very straightforward exercise to apply the public trust to the atmosphere. The government is a trustee and has to protect it for the benefit of present and future generations,” Wood—who calls the Juliana suit the “biggest case on the planet"—told Bloomberg Environment.

Emergency Relief

Oregon U.S. District Court Judge Ann Aiken breathed life into both arguments in a landmark Nov. 10, 2016, opinion ordering that the case could move to trial, rejecting motions from the Obama administration and several industry groups to dismiss the case.

And when Trump administration attorneys failed to convince Aiken to elevate the case to the Ninth Circuit, they bypassed the district court and asked the appellate court directly for emergency relief.

The three-judge panel must now decide whether Aiken made a “clear error” in saying the Juliana plaintiffs have legal claims plausible enough that the case should move to trial.

The Trump administration is also arguing the discovery process for the litigation would be too onerous—a claim that Aiken and magistrate Judge Thomas Coffin disputed in a letter to the Ninth Circuit defending their decision that the case should move to trial.

‘Potential to Create Chaos’

Attorneys who represented industry groups in the case declined to speak about the lawsuit with Bloomberg Environment.

Garbow said the Juliana case could create a slippery slope. “It’s difficult to imagine what sort of direction, interference, and guidance” could arise from the case that would “in a responsible and coordinated way” make the energy shifts plaintiffs are requesting to address climate change, he told Bloomberg Environment.

And a broad mandate from the court could, in fact, “dramatically disturb the way in which this country, if not international efforts, address energy use and transformation,” Garbow said. He added the scope of the case’s reach across federal agencies is problematic.

“So many federal policies are interwoven. I think this is precisely the kind of case to show a national coordinated effort to address these questions may in fact be needed, but to utilize the court with these sorts of theories has the potential to create chaos on an issue of such significance,” Garbow said.

Trump Effect

The change in administration—from Obama to Trump—since the case’s filing could ultimately factor into judges’ decision to allow the case to advance.

The Trump administration’s environmental rollbacks could “make it more likely the courts will step into this situation,” David Bookbinder, chief legal counsel for the libertarian Niskanen Center, told Bloomberg Environment. The Obama administration had tried to keep the court at bay by emphasizing actions it was taking to reduce emissions, including implementing the Climate Action Plan and helping to broker the global Paris Agreement, he said.

That argument had been the youth plaintiffs’ biggest hurdle, Wood said. With the Trump administration, “that argument has flown out the window off the 20th story floor.”

Gregory, the attorney for the children, said Trump reversals of Obama-era climate policies “speak volumes as to why the courts need to step in and require the problem be remedied.”

Bookbinder, though, suggested judges may ask the plaintiffs to specify during arguments what sort of remedy they envision. “The more dramatic the remedy, the more nervous courts are,” he said. That’s not part of the argument in front of the Ninth Circuit, but “they are going to want to know what exactly” the courts would be ordering the government to do if the case was ultimately successful.

On the bench for arguments are: Chief Judge Sidney Thomas, a Clinton appointee; Judge Marsha Berzon, another Clinton appointee; and Judge Alex Kozinski, a Reagan appointee.

The case is United States v. USDC-ORE, 9th Cir., No. 17-71692, oral argument 12/11/17.

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