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How the Government Plans to Defend Itself Against the Young People Suing Over Climate Change

Reviewing the government's expert testimony, we can see what its strategy will be as the Juliana case comes to trial.
The Supreme Court of the United States in Washington, D.C.

The Supreme Court of the United States in Washington, D.C.

In less than a week, the government could go on trial for causing climate change. It's a lawsuit that President Donald Trump's administration has tried its hardest to avoid, and whether the trial now goes ahead hinges on a last-minute temporary stay issued by the Supreme Court.

If the trial proceeds as planned, the administration will face 21 young plaintiffs on October 29th, and will fight claims that the United States government has violated those plaintiffs' constitutional rights by enacting policies that have caused global warming.

The lawsuit is known as Juliana v. United States. Filed in 2015, it was originally intended as a legal rebuke to the Obama administration, though the 2016 election means that Trump's government is now fighting the case.

The fate of the lawsuit currently hangs in the balance, as the Supreme Court considers a petition for a writ of mandamus submitted by the administration. The lawsuit has already survived multiple attempts by the government to have it dismissed.

"They don't want to go to the trouble [of going to trial]," says Pat Parenteau, professor of law at Vermont Law School. "The lawyers in the Department of Justice don't want to be tied up for 50 days. Their biggest objection to all of this is not, I think, the fear they're going to ultimately lose."

Despite the president's skeptical attitude toward climate change, the government is not challenging the science in this case. Over the past few months, the plaintiffs and the defendants have been gathering expert opinions that they believe will support their cause, and which will play an important role in the trial.

"We believe this case will come down to the importance of expert testimony on the best available science," Philip Gregory, one of the attorneys representing the youth plaintiffs, has said.

Based on these documents, here are some of the arguments that the government is likely to use when—and if—it meets these young people in the courtroom.

Did Climate Change Cause Actual Harm to the 21 Youths?

The young plaintiffs have outlined the ways in which climate change has affected their lives. The government is likely to question how and whether it's possible to attribute such specific harms to climate change.

In particular, government attorneys will probably argue that climate models can't reliably establish a link between a specific weather event and climate change. These models "generally cannot determine the regional effects of global climate change to the degree of specificity necessary to causally link to specific weather events, let alone to individuals and any claimed injuries," writes John Weyant, a professor at Stanford University, in his expert report commissioned by the government.

The government is also likely to argue that climate change rarely acts alone in causing harm, and that other factors such as local economic growth or decline, a vulnerable population, and urbanization also determine the effects felt in any given location. For instance, one plaintiff from Arizona has claimed that they've suffered increased heat waves thanks to climate change. But Weyant adds that it's also necessary to consider potential "confounding factors," like the urban heat island effect.

Is the U.S. Government to Blame for These Harms?

Based on its expert testimonies, the government is likely to claim that the U.S. is not responsible for any harms suffered by the plaintiffs, since the government is only responsible for a portion of global emissions: Between 1990 and 2015, the U.S. has been responsible for 21 percent of energy-related CO2 emissions worldwide, concludes James Sweeney, an economist at Stanford University, in his expert report for the defense. Even if the U.S. completely halted its use of fossil fuels, he says, global emissions would continue to grow.

"As a result, unilateral action by the U.S. could not provide plaintiffs with the relief that they seek—that is, CO2 concentration no greater than 350 parts per million," Sweeney says. "Any solution to climate change requires global coordination and cannot be based on U.S. action alone."

What's more, the U.S. hasn't been wholly responsible for elevating CO2 concentrations beyond 350 ppm, Weyant says. Even if the U.S. had ceased burning fossil fuels in 1990, atmospheric concentrations in 2015 would have been 389 ppm, rather than their actual level of 401 ppm—so the government is likely to ask how much responsibility it should really have to shoulder for reducing CO2 concentrations back to the levels demanded by the plaintiffs.

Is It Possible to Transition to 100 Percent Clean Energy?

The plaintiffs have submitted an expert report by Mark Jacobson, an engineering professor at Stanford, claiming that it is "technologically and economically possible" to run the U.S. on 100 percent clean energy by 2050.

The government has submitted its own expert reports arguing strongly against the feasibility of this idea, including an accusation that Jacobson's plan for a clean energy transition relies on flawed data and a flawed methodology.

"It is my expert opinion that Jacobson's proposed timelines for building, installing, and deploying the necessary facilities and infrastructure to transition to his proposed energy system are unrealistic and likely infeasible by failing to address myriad real-world considerations," writes Howard Herzog, a senior research engineer at the Massachusetts Institute of Technology. Sweeney, meanwhile, accuses Jacobson of assuming "the existence of technologies that are in development and are decades from commercial acceptance."

Did the U.S. Choose Not to Act?

The plaintiffs are asserting that the U.S. government consciously chose policies that have benefited the fossil fuel industry.

They rely on the expert report of Nobel Prize-winning economist Joseph Stiglitz. "The fact that the U.S. national energy system is so predominantly fossil fuel-based is not an inevitable consequence of history," Stiglitz writes. "The current level of dependence of our energy system on fossil fuels is a result of intentional actions taken by defendants over many years." These actions, Stiglitz says, include fossil fuel subsidies and a lack of research and development into alternatives, even following the oil crises of the 1970s, when the risks of America's oil dependence became clear.

The government's experts reject these claims. David Victor, a professor of international relations at the University of California–San Diego, points out that the U.S. was not alone in developing an energy system that depended on fossil fuels, arguing (contra Stiglitz) that "the global race to dependence on fossil fuels, indeed, was inevitable." Victor also claims that federal fossil fuel subsidies are a "tiny fraction" of the total value of the fossil fuel industry, to the extent that such governmental assistance is "not material" to its continued dominance.

Is Climate Change Making the 21 Plaintiffs Sick?

Finally, the government is likely to question the youths' claims that climate change has caused their health problems, and has called on doctors to assess the plaintiffs' symptoms from a medical perspective.

Arthur Partikian is a medical doctor at the Children’s Hospital Los Angeles who specializes in pediatric neurology. He has assessed the claims that some of the plaintiffs have experienced headaches, as climate change (they say) exacerbates allergies, asthma, infections, and heat. While Partikian doesn't deny that these claims could be true, he writes that the plaintiffs have not provided the necessary documentation—which would include other possible triggers and family history—to support the connection to climate change conclusively.

Elizabeth Brown, a staff attorney at Our Children’s Trust, the non-governmental organization leading the case, points out that each of OCT's experts has provided insights for free, compared to the hundreds of dollars per hour billed by experts called in by the government.

"At trial, youth plaintiffs will rely on a vast amount of evidence going back over 50 years," Brown says. "They will prove that the United States government has enabled and perpetuated a fossil fuel-based energy system causing the climate crisis and violating their constitutional and public trust rights."

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