Kavanaugh casts shadow over kids’ climate case

Source: Benjamin Hulac, E&E News reporter • Posted: Thursday, October 11, 2018

The confirmation of Justice Brett Kavanaugh to the Supreme Court may have already had repercussions on a high-profile climate change lawsuit brought by a group of young Americans.

Late last week, the Trump administration requested that a federal district court in Oregon halt trial proceedings in the lawsuit so the high court could consider whether the case is the “appropriate means” to address global warming.

Lawyers for the government made no significant new arguments in their motion. The U.S. District Court for the District of Oregon, 9th U.S. Circuit Court of Appeals and Supreme Court have all already greenlighted the trial, repeatedly ruling against Department of Justice requests to stay the case.

But that sequence of denials came before Kavanaugh joined the court this weekend, replacing Justice Anthony Kennedy, who in July — in his last action on the high court — denied the administration’s most recent attempt to halt the case (E&E News PM, July 30).

Holly Doremus, an environmental law professor at the University of California, Berkeley, said the government’s lawyers appear to think they may have a chance at waylaying the lawsuit with Kavanaugh on the court.

“I think they’re looking at Justice Kavanaugh,” Doremus, who reviewed the latest stay request, said in an interview.

“There doesn’t seem to me to be anything new,” she said. “The only new context is that there’s a new member of the Supreme Court.”

The plaintiffs in the case, Juliana v. United States, are 21 children and young adults. They say the government has abdicated its legal duty to protect the environment, them and future generations, despite decades’ worth of research documenting the dangers of climate change.

Trial is scheduled to begin Oct. 29 in Eugene, Ore.

Pat Parenteau, an environmental law professor teaching this fall at Ireland’s University College Cork, said the government’s request filed Friday, when Kavanaugh’s Senate confirmation seemed to be a lock, was unlikely to get a different response from the Supreme Court.

“SCOTUS has already denied a similar attempt and nothing has changed other than Kavanaugh is now on the bench,” Parenteau said by email, adding that he thought the government’s move seemed desperate.

“I doubt the Court is going to intervene at this point just to save the [government] the trouble of putting on a defense,” he said.

He added: “I think this is a last gasp desperation move by [the DOJ] to avoid the trouble of what promises to be a long and embarrassing trial.”

In the court papers submitted Friday, government attorneys said the plaintiffs do not have “fundamental” rights protected under U.S. law related to safe climate conditions and that their arguments are appropriate for political advocacy — not court (Greenwire, Oct. 8).

The plaintiffs are suing for a court order saying the government has violated their rights to a safe climate and to trigger a court-ordered plan to phase out fossil fuels nationwide (Climatewire, Oct. 5).

“It is clear the Trump administration is frightened to allow the climate science to be presented in the courtroom,” Philip Gregory, a lawyer for the plaintiffs, said in a statement Friday.