The lawsuit is bold, and few legal observers thought it would get this far. But for the 21 young plaintiffs who are suing the federal government for its failure to protect them — and all of us — from global warming-related harm, it’s an open and shut case involving basic constitutional rights.
The case, known as Juliana v. United States, had been scheduled to go to trial in Oregon beginning on Feb. 5. Among the issues to be determined at trial is whether the government’s actions over the past several decades — the years when scientists began to understand and widely accept that greenhouse gas emissions cause global warming — violated the plaintiff’s constitutional rights.
The feds have been desperate to get out of this case or halt it. In June, the government filed an unusual petition, rarely granted, that would allow it to circumvent a trial altogether.
Known as a writ of mandamus, it seeks to have the Court of Appeals for the 9th Circuit review a 2016 U.S. District Court decision not to dismiss the case. In their petition, the Trump administration argued that merely participating in the pre-trial discovery process and production of evidence would cause it harm.
In other words, the government maintains that it would face a monumental task were it forced to sift through climate science evidence and records of policy discussions at the federal level.
On Thursday, the 9th Circuit chose not to grant the writ the government is asking for, at least not yet. Instead, the court will hear oral arguments in the case on Dec. 11 at 10 a.m. local time in San Francisco. The arguments will be streamed live from the courtroom, and could mark a turning point in the case. If the appeals court denies the government’s petition, it would mean that there is no way to avoid going to trial, which would constitute a milestone in the history of climate change law.
The case has already broken new legal ground in getting a District Court judge to declare that the plaintiffs have a constitutional right to a stable climate.
“I think that shows that they’re in a pretty desperate position right now,” Alex Loznak, one of the plaintiffs, who is a student at Columbia University, said of the federal government. “I would say I’m definitely glad that we’re taking a step forward and hopefully this is a step that moves closer to trial,” he said in an interview.
Loznak said the government may face a skeptical panel, given the 9th Circuit’s recent history.
“These are the big leagues in terms of the 9th Circuit, the 9th Circuit has made quite a few decisions in the last year that have been adverse to the Trump administration,” he said.
The plaintiffs are eager to get on with the case.
“Every week, or even every day, that our trial is delayed is time I spend further worrying about the stability of our climate system and the security of my future,” said Kelsey Juliana, a 21-year-old plaintiff from Eugene, Oregon.
Julia Olsen, co-counsel for plaintiffs and executive director of Our Children’s Trust, the advocacy group that brought the suit, said the government’s argument makes little sense in light of the research her side has been able to do with far fewer resources.
She said the government is making “A ludicrous proposition that the federal government can’t handle discovery in this case when a group of young people and their pro bono lawyers can.”
Olsen and Phil Gregory, a co-counsel for the plaintiffs and partner with Cotchett, Pitre & McCarthy, LLP, in Burlingame, California, said there is an urgency to their case given the speed with which climate change is taking place, and the Trump administration’s policy moves to undo emissions cuts.
President Donald Trump has called climate change a hoax, and his cabinet officials have denied the scientific link between greenhouse gas emissions and global warming.
“There’s just such extreme urgency right now to have these constitutional infringements addressed by our courts with the full factual records,” Olsen said.
“This constitutional case needs to be heard and not further delayed,” Gregory said.
Gregory said the plaintiffs plan to put the science on trial, with scientists taking the stand to back up the scientific basis for their position, while the government has the opportunity to counter it.
“What we’re going to be putting on in the courtroom is science, and they’re going to be putting on a different smoke and mirrors trial,” Gregory said of the Trump Justice Department.