American youth are preparing to take the U.S. government to court, where they'll fight for the right of future generations to live in a stable climate.
The Trump administration is trying its hardest to avoid a trial in Juliana v. United States, with some degree of success. The case has sparked interest around the world, while the fossil fuel industry has withdrawn its support for the government.
The lawsuit pits 21 young plaintiffs, aged between 11 and 22, against the U.S. government—specifically, against numerous agencies, including the Department of Energy, the Department of the Interior, and the Department of Defense. District Judge Ann Aiken will hear the case.
We look at some of the key questions about the landmark lawsuit, including whether these young people will ever get their day in court.
Will the Case Ever Go to Trial?
The government is desperately trying to avoid a trial. It has not succeeded—so far—in dismissing the case entirely, but managed to dodge a court date that was scheduled for October in the U.S. District Court in Eugene, Oregon, after the Supreme Court granted a temporary stay in response to a government petition. Although a permanent stay was subsequently denied, the U.S. Court of Appeals for the Ninth Circuit then granted another stay, in response to another government request, and, as of November 21st, was deciding whether the case would go to trial. In short, there's no new trial date yet, but preparations are continuing.
Why Are These Young People Suing the Government?
The youth plaintiffs allege that their constitutional rights have been violated by the U.S. government's policy of extracting and burning fossil fuels, emitting CO2 and destabilizing the climate that is vital to the well-being of future generations. This knowing failure to address climate change has violated the public trust doctrine—which requires the government to maintain a livable environment—and the children's rights under the Fifth and Ninth Amendments, including their "fundamental rights to life, liberty, and property."
What Will Take Place in the Courtroom?
Before the stay, some 50 days had been set aside for the trial, although it may not take that long. If the parties eventually find themselves in a courtroom, Julia Olson, the attorney representing the plaintiffs, will kick off the proceedings with her opening argument. From there, the court will hear the testimonies of the 21 young people who have brought the case—each is claiming specific harms from climate change—as well as from the expert witnesses on behalf of the plaintiffs and the government.
Why Has the Administration Tried So Hard to Get the Case Dismissed?
In its attempts to avoid going to trial, the government has argued that the lawsuit is a "clearly improper attempt to have the judiciary decide important questions of energy and environmental policy," and that the plaintiffs' demands represent a "staggering burden" to the government. Its recent petition to the Supreme Court claimed that the plaintiffs have failed to show concrete harm resulting from the government's actions, and that the case extends beyond the constitutional reach of the judiciary. Pat Parenteau, a professor of law at Vermont Law School, doesn't buy these excuses. "What it really gets down to is they don't want to go to the trouble," he says.
Why Isn't the Administration Trying to Deny Climate Change?
Despite the Trump administration's demonstrated skepticism of climate change, the government will avoid quibbling over science during the trial. Instead, Jeffrey Wood, the government attorney fighting the case, will argue that the plaintiffs had no right to bring the case because of the difficulty of linking concrete harms to climate change, and that the U.S. government has only partial responsibility for rising carbon emissions. The government's legal strategy is at odds with the well-known opinions of President Donald Trump. So why has it taken this approach? "Fake climate science in the courtroom is perjury," muses Philip Gregory, one of the lawyers representing the plaintiffs. "They would have looked absolutely foolish" if government lawyers were to question the veracity of science at the highest court, Parenteau adds.
Is the President Off the Hook?
The administration has won one particular battle: Trump has been dismissed from the suit, meaning that he is no longer being sued. Aiken granted the defendants this small victory earlier this month, on the grounds that the plaintiffs could achieve their objectives simply by suing the federal agencies. Despite the government's wishes, however, Trump was dismissed "without prejudice," meaning that he could be recalled to the suit, if his presence is deemed necessary.
What Are the Plaintiffs' Chances of Success?
That depends who you ask. Certainly, the plaintiffs have come a long way since they filed their wide-ranging lawsuit in 2015. Their lawyers have resisted calls, from the judge and from outsiders, to narrow the scope of their case. "They're looking for a big victory. I'm concerned they're asking an awful lot," Parenteau says, adding that he personally advised the plaintiffs to zero in on actions that government can take on federal lands. "This is a novel case, really pushing the envelope," he says. Even if they win this round, the case is bound to be appealed to the Ninth Circuit Court, and even to the Supreme Court. Given the conservative-leaning bench, no one doubts that the plaintiffs face an uphill struggle at the highest court.
What Do the Plaintiffs Want to Achieve?
The plaintiffs are asking the the court to order the federal government to prepare and implement "science-based climate recovery plans" to ensure that atmospheric CO2 returns to 350 parts per million by 2100. The exact nature of the relief would be determined by Aiken herself, but it would likely be broad in scope, setting the direction and the goal, while leaving the government to fill in the policy details.
Does It Matter?
With so many variables in play, it's difficult to tell what effect this lawsuit might have on America's role in tackling climate change. In two years, America will face another election, which will likely "have a bigger bearing on U.S. energy policy than anything that happens in the Juliana case," Parenteau says. On the other hand, the 2020 election could lead to such a swing in politics that a Democratic administration might even decide not to appeal the case, says Melissa Powers, professor of law at Lewis & Clark Law School. The lawsuit could also have indirect effects: "It might create a bit of a runway for other federal courts to be open to common law remedies to address climate change, particularly where our federal government is refusing to do anything," Powers adds.
Could the Plaintiffs Force the U.S. Government to Rejoin the Paris Agreement?
In the government's expert witness statements, various academic authorities emphasize that the U.S. is not wholly responsible for causing climate change, and that solving the problem is a global task. That would be all very well as a defense, but the U.S. has already recused itself from collaborative action on climate change by initiating the process of withdrawing from the Paris Agreement. Still, it's unlikely that the judge would demand the U.S. rejoin the treaty: As a matter of foreign affairs, this decision falls to the president himself, rather than to the judiciary. (If the judge were to include the Paris Agreement in a ruling, it would likely mean pulling the president back into the case.)
In many ways, the Juliana case is a landmark moment in legal history. But, despite the ambitious relief sought by the plaintiffs, a victory in this trial is unlikely to change the face of U.S. climate policy just yet. Even a victory at the District Court faces a long and tough path toward changing the government's policy around emissions reductions—by which point, a new, climate-friendly government could well be in power.
That doesn't prevent the lawyers representing these 21 youths from expressing optimism.
"I think the judge will find our experts win hands down," Gregory says.
New Landscapes is a regular series investigating how environmental policies are affecting communities across America.