Justices OK climate case, but kids have long way to go

Source: Benjamin Hulac, E&E News reporter • Posted: Tuesday, November 6, 2018

The Supreme Court on Friday lifted the hold on a climate lawsuit brought by a group of young Americans against the federal government, ending the legal purgatory that the case had been stuck in for weeks.

The Trump administration had sought to scuttle the case, arguing that it was based on “unprecedented” legal concepts, including a constitutional right to safe climate conditions.

But in an unsigned order, the high court said it would not step in now. The court lifted a previous stay Chief Justice John Roberts had put in place Oct. 19.

Justices, though, signaled that the government could still take its case up with the 9th U.S. Circuit Court of Appeals.

Julia Olson, lead attorney for the 21 children and young adults who brought the case, said in a statement that she had contacted the federal district court in Oregon to start a long-anticipated trial next week.

“The youth of our nation won an important decision today from the Supreme Court that shows even the most powerful government in the world must follow the rules and process of litigation in our democracy,” Olson said Friday.

The order is at least a temporary triumph for the plaintiffs, who are eager to present their case at trial with the hope of proving their central claim — that the government has undermined their constitutional right to live in an ecosystem with a safe climate.

The plaintiffs first sued the Obama administration in 2015, arguing that such a right is inherent in other, already-enshrined constitutional protections. They are demanding a nationwide plan, based on the latest climate science, to ramp down fossil fuel combustion.

Before the stay, the trial was supposed to begin Oct. 29 in Eugene, Ore., where U.S. District Judge Ann Aiken has issued rulings allowing the case to go forward. The judge, though, has acknowledged that this is not an ordinary environmental lawsuit.

“It alleges 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,” Aiken wrote in 2016.

Both the Obama and Trump administrations sought to dismiss the case.

Wyn Hornbuckle, a Department of Justice spokesman, said in a statement that the government’s motion to the Supreme Court was dismissed “without prejudice,” meaning it could be brought again. “We are pleased that it sets a path for the Justice Department to continue efforts toward dismissal of this improper case,” Hornbuckle said.

Holly Doremus, an environmental law professor at the University of California, Berkeley, said that despite the Supreme Court’s order, it was “too early to say that there will likely be a trial.”

“Note the pretty powerful suggestion that the 9th Circuit might reconsider its prior position,” Doremus said.

In its order, the Supreme Court said that relief the government requested “may be available in the United States Court of Appeals for the Ninth Circuit.”

That court, though, has twice refused to halt discovery and trial elements of the case.

Richard Frank, a professor of environmental law at the University of California, Davis, also highlighted the order’s signal to the 9th Circuit, calling the ruling a “mixed message.” He noted that, on the one hand, the court lifted the stay previously issued by Roberts.

“On the other hand,” Frank said, “the Supreme Court’s latest order also sends a strong suggestion to the 9th Circuit Court of Appeals that that court should reconsider its previous two orders refusing to halt discovery and the scheduled trial in the district court.”

Justices Neil Gorsuch and Clarence Thomas said they would have approved the administration’s request to halt the trial.

Adding to the confusion is the fact that three federal courts — the district court in Eugene, the circuit court and the Supreme Court — are involved in the case.

“There are going to be proceedings going on in all three levels of federal court at the same time,” said David Bookbinder, chief counsel of the Niskanen Center. He couldn’t recall a similar situation: “It’s not supposed to happen.”

A pillar of the plaintiffs’ case is a trove of government documents, many of which date back to the mid-1900s.

Industry groups and some conservatives have said the case is built on faulty legal groundwork and that there is no right to a safe climate.

The plaintiffs in the case are demanding a right that “simply does not exist,” Jeffrey Wood, the No. 2-ranking official in DOJ’s Environment and Natural Resources Division, said at a law conference last month.

Scott Segal, a partner at the law firm Bracewell LLP, which represents fossil energy companies, said hours after the stay that the case was based on a “tortured legal theory” and that the plaintiffs have a long fight ahead. A court-ordered climate plan is something best left for Congress and the White House, he said.

“Climate change is serious, but the careful balancing of interests required to address it can only be addressed by the legislative and executive branches,” Segal said.