Stay in kids’ case a harbinger of more conservative rulings?

Source: Benjamin Hulac, E&E News reporter • Posted: Tuesday, October 23, 2018

The Supreme Court late Friday stayed discovery and trial in a landmark climate change lawsuit, marking a temporary win for the Trump administration.

As expected, industry officials cheered the announcement, and environmental advocates denounced it. But the action also served to underscore the conservative bent of the high court and the importance of Chief Justice John Roberts in active and future environmental lawsuits, including climate change cases.

In a short order, Roberts halted the case, Juliana v. United States, which was slated to begin trial Oct. 29 in U.S. District Court for the District of Oregon. He did not provide an explanation (Greenwire, Oct. 19).

The plaintiffs, a group of 21 young Americans, said they would fight the stay and file a response today, two days before Roberts’ Wednesday deadline. They have accused the government of violating their constitutional right to live in and occupy a safe climate and ecosystem. And they are seeking a court order that would press the U.S. government into drawing up a plan to phase out fossil fuels nationwide.

“We are confident once Chief Justice Roberts and the full Court receive the youth plaintiffs’ response to defendants’ mischaracterization of their case, the trial will proceed,” said Julia Olson, chief legal counsel for Our Children’s Trust, the group behind the plaintiffs.

The order may be a harbinger of a top court more averse to hearing climate change arguments, with Roberts as the likely deciding vote in future cases.

Since conservative justices have a “solid five-member majority on the court, I’m not optimistic that the Julianaplaintiffs will ever see the trial of their claims come to pass,” Richard Frank, a professor of environmental law at the University of California, Davis, wroteshortly after the stay was issued.

In taking the unusual step of issuing the stay, the court drew immediate comparisons with its 5-4 vote in February 2016 staying EPA’s implementation of the Clean Power Plan. The Trump administration has since proposed to water down the rule, which was aimed at lowering carbon dioxide emissions from power plants.

“Supreme Court halts Julianacase (young peoples’ climate change case),” Michael Gerrard, director of Columbia University’s Sabin Center for Climate Change Law, said on Twitter. “Highly unusual action, reminiscent of their stay of the Clean Power Plan.”

The parallels between the stays didn’t escape Frank’s eyes, either.

“Of course, this is not the first time the U.S. Supreme Court has taken extraordinary and previously-unprecedented steps to sidetrack efforts to address climate change concerns,” he said. The halting of the Clean Power Plan marked “the first time the Court had ever stayed a federal regulation before a decision by the lower federal courts,” he said.

Roberts has been skeptical of the judiciary’s role in addressing the effects of heat-trapping emissions and of legal standing in climate change cases.

“Global warming may be a ‘crisis,’ even ‘the most pressing environmental problem of our time,'” Roberts wrote in a dissenting opinion in Massachusetts v. EPA, the 2007 decision that gave EPA the authority to regulate greenhouse gases. “It is not a problem, however, that has escaped the attention of policymakers” in Congress and in the administration, “who continue to consider regulatory, legislative, and treaty-based means of addressing global climate change,” he said.

Massachusetts, which brought the case, could take up its fight to address climate change through Congress, he said.

Shortly following Friday’s order staying Juliana, two lawyers who have represented energy companies said climate change should be handled outside court.

“The Supreme Court is acknowledging what we have really known all along: This is a policy issue that belongs in the halls of Congress, not the courts,” said Jeff Holmstead, an energy lobbyist at the law firm Bracewell LLP, which represents fossil energy companies.

His colleague Scott Segal, another partner at Bracewell, said the trial, which is expected to run 50 days or more if it occurs, was organized for “show.”

“We have long suggested that the courts are an inappropriate mechanism to address a policy issue as complex as climate change,” he said in an emailed statement. He called the stay “a step in the right direction.”

After the departure of former Justice Anthony Kennedy and confirmation to the court of President Trump’s two nominees — Justices Neil Gorsuch and Brett Kavanaugh, both of whom lean further to the right than Kennedy — Roberts will be the deciding vote on many contentious cases.

An overlooked repercussion of Kennedy’s leave, though, may play out in the 9th U.S. Circuit Court of Appeals, which is known for its often favorable views toward environmental cases.

Roberts replaced Kennedy temporarily as the “circuit justice” for the 9th Circuit, so the Julianadecision fell in his lap. But Justice Elena Kagan was assigned to the role effective Friday, a posting that will allow her to make unilateral decisions from now on about certain appealed cases or refer them to the full court.

With the pair of stays in mind, Frank said he is doubtful that any of the three federal government branches will do much to address rising global temperatures.

“So it would appear that these days the U.S. Supreme Court isn’t hospitable to either innovative climate change litigation or major climate change regulatory initiatives by the Executive Branch,” he said.

“That leaves Congress,” he continued. “Yikes.”