The plaintiffs allege that the United States government’s affirmative actions caused climate change, violated the youngest generation’s constitutional rights to life, liberty, and property, and failed to protect essential public trust resources.
In this latest step of a fascinating bit of constitutional law called Atmospheric Trust Litigation, the Court denied the Trump administration’s application for stay, preserving the U.S. District Court’s trial start date of October 29, 2018. The Supreme Court also denied the government’s premature request to review the case before the district court hears all of the facts that support the youth’s claims at trial.
The Supreme Court’s decision follows the July 20th decision in favor of the youths from the Ninth Circuit Court of Appeals which also denied the government’s highly unusual second petition for writ of mandamus. Mandamus is a court order from a higher court to a government agency, which can also include a lower court, to follow the law by correcting its prior actions.
Mandamus is usually issued to correct defects of justice but SCOTUS didn’t feel anything was wrong in how this lawsuit was proceeding.
Instead, the Court stated, “The breadth of [the youth’s] claims is striking’ and ordered the District Court to take the federal government’s ‘concerns into account in assessing the burdens of discovery and trial, as well as the desirability of a prompt ruling on the Government’s pending dispositive motions.’” On July 18, 2018, the District Court expressed its intent to issue a ruling on the government’s motions promptly.
The fossil fuel industry initially intervened in the case as defendants, joining the U.S. government in trying to have the case dismissed early on. In April 2016, U.S. Magistrate Judge Thomas Coffin of the United States District Court for the District of Oregon recommended denial of both motions to dismiss. U.S. District Court Judge Ann Aiken upheld Judge Coffin’s recommendation, with the issuance of a historic November 10, 2016 opinion and order denying the motions.
In June 2017, Judge Coffin issued an order releasing the fossil fuel industry defendants from the case, which I’m sure they realized was a no-win for their industry.
In July 2017, the United States Court of Appeals for the Ninth Circuit requested attorneys for youth plaintiffs to submit a response to the Trump Administration’s petition for a writ of mandamus and invited the District Court to respond as well. The District Court responded via letter and the youth plaintiffs filed their answer. Further, eight amicus briefs were filed with the Ninth Circuit in support of the youth plaintiffs.
The coming weeks leading up to the start of the trial on October 29th will be filled with crucial and intensive trial preparation. Depositions of the plaintiffs and expert witnesses on both sides will be taken, additional rulings are expected from the District Court, and important evidence will be exchanged between the parties. This suit is really the first time Global Warming is being fully heard in a High Court of the Land.
This has been a long road for an unusually young group of plaintiffs. When it began, these plaintiffs were between 7 and 18 years old. This interesting take on climate change activism was championed by Professor Mary Christina Wood in the Law School at the University of Oregon. Her concept of Atmospheric Trust Litigation reasons that a government elected by the people has a duty to protect the natural systems required for those peoples’ survival.
As is often stated in political discourse lately, “We are a Nation of Laws.” And since the founding of this nation, courts have affirmed that government is a trustee of the natural resources that we depend on, a doctrine long-known as public trust.
What better way to approach environmental protection than through the courts. And brought by young people whose generation has the most standing in this issue.
“Equity between generations is a key issue with climate change,” said Ross Macfarlane, Senior Advisor with Climate Solutions, a Northwest based clean economy organization which has also participated in these lawsuits. “Those who benefit most from the carbon pollution won’t be around to feel the worst impacts. These actions attempt to redress that balance, and allow future generations a voice in the legal system.”
But does the public trust doctrine that underlies protection of the environment apply to a nebulous entity like climate? And does it govern vague concepts like reducing atmospheric carbon?
Wood points out that if we believe our Constitution guarantees us a right to “live and flourish,” then forests, wildlife, soil, water, and air must be protected in order for citizens to be able to live, be free and pursue happiness.
And the government elected by the people has that duty to provide protection. If both the executive and legislative branches fail in that duty, then the judicial branch must intervene.
Victoria B., 19-year-old plaintiff from White Plains, NY said it this way, “The constitutional rights of my fellow plaintiffs and I are at stake in this case, and I am glad that the Supreme Court of the United States agrees that those rights should be evaluated at trial. This lawsuit becomes more urgent every day as climate change increasingly harms us. I have reaffirmed confidence now that all levels of the federal judiciary have ruled in our favor that there should be no more delay in getting to our trial.”
Julia Olson, executive director and chief legal counsel of Our Children’s Trust and co-counsel for the youth plaintiffs added, “This decision should give young people courage and hope that their third branch of government, all the way up to the Supreme Court, has given them the green light to go to trial in this critical case about their unalienable rights. We look forward to presenting the scientific evidence of the harms and dangers these children face as a result of the actions their government has taken to cause the climate crisis.’
In what is shaping up to be a loggerhead between human law and natural law, whatever happens in the Ninth Circuit, I’m sure this case will eventually be back in SCOTUS’ court.
Dr. James Conca is an expert on energy, nuclear and dirty bombs, a planetary geologist, and a professional speaker. Follow him on Twitter @jimconca and see his book at Amazon.com