Feds spooked by kids’ litigation

Justice Department, Supreme Court stall landmark environmental case

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Juliana v. United States was filed in 2015 by climatologist Dr. James Hansen and 21 young people aged 10-22, six of whom are from Eugene. The lawsuit asserts that the U.S. government has been aware of the environmental hazards linked to fossil fuels for at least the last 50 years, and knowingly chose to ignore these risks, thereby increasing emissions and atmospheric carbon concentration, the primary cause of climate change.

Plaintiffs “allege that defendants’ actions and inactions—whether or not they violate any specific statutory duty—have so profoundly damaged our home planet that they threaten plaintiffs’ fundamental constitutional rights to life and liberty.” They demand that the government “implement an enforceable national remedial plan to phase out fossil fuel emissions” to “stabilize the climate system.”

The plaintiffs’ case is being litigated by Our Children’s Trust, a Eugene-based, non-profit that, according to their website, “advocate on behalf of youth and future generations” to implement “legally binding, science-based climate recovery policy.”

In Nov. 2016, the case found firm legal standing on the grounds of a principle known as the “Public Trust Doctrine.” Plaintiffs argued that air and water are included in the Constitution’s guarantee of the public trust. The Oregon District Court agreed and ruled the doctrine applicable under “the natural resources trust,” an obligation in which the trustee, the U.S. government, has a fiduciary duty to “protect the trust property against damage or destruction.” The ruling cleared the case for trial.

Quentin J. Piccolo
Cartoon by Quentin J. Piccolo

On Friday, Oct. 19, the Department of Justice filed a stay motion with the Supreme Court known as a “writ of mandamus,” an appeal for a temporary stop on proceedings. In a surprising stretch of the judicial branch’s reach Chief Justice John Roberts granted the motion, stalling the hearing scheduled to begin Monday Oct. 29 at the Federal Courthouse in Eugene.

The writ contends that the District Court “has allowed this improper suit to proceed for nearly three years over the repeated objections of the government” which is an attempt to assert “a new and unsupported fundamental due process right to certain climate conditions.” Further claiming that there are political processes outlined in the Constitution to redirect environmental and energy policies and therefore the climate change suit is improper for the courts.

Plaintiffs filed a 103- page brief on Oct. 22 in response to the stay requesting that the trial continue as scheduled, insisting that delay “will disrupt the integrity of the judiciary’s role as a check on the political branches and will irreparably harm these children.”

This is the third writ filed by the DOJ to stay the case all of which contain a strikingly similar argument. All previous petitions have been rejected by the Ninth District Court of Appeals. The appellate court’s judgment states that Federal Courts “too often have been cautious and overly deferential in the arena of environmental law and the world has suffered for it.”

Ann Carlson, an environmental law professor at the University of California Los Angeles, said in an interview with Vox that it is very unusual for the Supreme Court to block a proceeding in a lower court and generally signals that “the court is uncomfortable with the underlying legal theory.”

The underlying legal theory is one of linguistic interpretation. The plaintiffs’ claim that government allowance of fossil fuel emissions violates the public trust as well as the equal protection and due process components granted by the Fifth, Ninth and Fourteenth Amendments of the Constitution. Although this leans heavily on a substantive due process principle which, in part, “forbids the government to infringe certain ‘fundamental’ liberty interests at all, no matter what process is provided,” the application is unprecedented and would change the way the Constitution and law is upheld.

The stay motion may have halted proceedings but it has done little to slow the momentum of the cause. Over the weekend, the streets of downtown Eugene were alive with environmental activists marching to show solidarity with the plaintiffs and on Monday, the day the trial was scheduled to begin, a rally was held outside the Federal Courthouse.

The case remains ‘vacated’ indefinitely, it’s fate pending further Supreme Court review. It is unknown whether the case will ever get its day in court but whatever the outcome it has already made great strides in the direction of climate justice.