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'There Is a Monumental Threat to Young People': Will the Plaintiffs Suing the Government Over Climate Change Ever Get a Trial?

The young people suing the government over climate change are hoping that Tuesday’s hearing has convinced the Ninth Circuit to allow their case to proceed.
Our Children’s Trust holds a rally in support of the Juliana v. U.S. lawsuit outside the U.S. Supreme Court on October 29th, 2018, in Washington, D.C.

Our Children’s Trust holds a rally in support of the Juliana v. U.S. lawsuit outside the U.S. Supreme Court on October 29th, 2018, in Washington, D.C.

On Tuesday, attorneys representing the 21 young plaintiffs suing the United States government over climate change argued before the U.S. Court of Appeals for the Ninth Circuit to allow the case, Juliana v. United States, to go to trial. The plaintiffs accuse the government of violating their constitutional rights to life, liberty, and property by perpetuating the use of fossil fuels, thereby contributing to climate change.

The three judges in Portland, Oregon, heard from Julia Olson, representing the plaintiffs, and Jeffrey Clark, an assistant attorney general representing the Trump administration. The hearing, which was originally supposed to happen last October, is the result of several attempts by the federal government, under both the Obama and Trump administrations, to convince courts to scrap the case.

Olson argued on Tuesday that the government is "perpetrat[ing] a constitutional violation and put[ting] children in harm's way, with deliberate indifference to that harm," because, by the government's own admission, the climate crisis represents "a monumental threat to young people." Ultimately, these youth plaintiffs are asking judges to rule that the government needs to correct that wrongdoing by creating a national plan to transition away from fossil fuels.

Olson also argued that the federal government's support of fossil fuels represents an instance of discrimination. "The government devalues the lives of these young people when making decisions about energy policy and climate policy. They value them less, and they value adults today more," she said at the hearing. "And [young people] are discriminated against because of that practice."

This was a line of reasoning used by Columbia University economics professor Joseph Stiglitz, who last year wrote a report on behalf of the plaintiffs arguing that young people suffer the most when the government doesn’t account for environmental externalities. Olson cited Brown v. Board of Education and Brown v. Plata as precedents where courts had ruled government actions to be unconstitutional, thus forcing the government to correct those actions.

For the defense, Clark reiterated the government's main argument that using the courts to force the federal government to act on climate would be an attack on the separation of powers. He also argued that the scope of the suit was perilously broad, and, if the court were to rule in the youths' favor, would have wide-reaching, snowballing consequences. For example, he argued, there could be a scenario in which people could sue over the prevalence of heart disease, because the government isn't encouraging exercise or has been encouraging the consumption of unhealthy foods.

Judge Josephine Staton, a visiting judge from California, countered that the plaintiffs' framing is more narrow than Clark was suggesting.

Clark advised that, rather than suing the federal government, the plaintiffs should instead petition states or individual government agencies over the climate question, and cited Massachusetts v. Environmental Protection Agency, in which the Supreme Court ruled that the EPA must regulate greenhouse gases as pollutants, as a precedent and legal pathway they could take instead. Then, he said, the plaintiffs could build a case step-by-step, instead of trying to "duck" agency and government procedure.

Judge Andrew Hurwitz, who has ruled in favor of climate regulation in the past, said that he's "sympathetic to the problems [the plaintiffs are] pointing out." But Hurwitz added that the plaintiffs "shouldn't say that this is just an ordinary suit," because they're asking the judges to "break new ground."

Here, Hurwitz addresses an issue that has loomed over the case since it began in 2015: Many aspects of the Juliana suit, especially its central tenet that future generations have a constitutional right to a safe climate, are unprecedented. It's all so new and wide-reaching that experts have expressed surprise that the case hasn't yet been dismissed outright.

There's no deadline on the decision, so months could pass before the judges decide whether or not the case goes to trial.

Plaintiffs are hoping they can beat the odds and finally present their evidence in court. Then, as Olson said in her closing statement, the plaintiffs would have a chance to ensure that, "When our great-grandchildren look back on the 21st century, they will see that government-sanctioned climate destruction was the constitutional issue of the century."