Federal appeals court judges may agree with a group of kids that the government hasn’t done enough to address climate change, but they’re not sure if the courts can step in to force broad action.

Three judges on the U.S. Court of Appeals for the Ninth Circuit, in June 4 oral arguments, grappled with the scope of the remedy that a group of 21 young plaintiffs are asking them to impose on the federal government in a novel lawsuit. The suit argues that the government has violated a constitutional right to a livable climate.

And the judges appeared to struggle with the new legal ground they would be breaking if they agreed with the young plaintiffs in Juliana v. United States. The Justice Department argued the young plaintiffs didn’t have standing to bring the case and that the courts didn’t have the jurisdiction to take it.

But the judges—Ninth Circuit Judges Mary H. Murguia and Andrew D. Hurwitz, and Central District Court of California Judge Josephine L. Staton—also asked tough questions of the Justice Department during the arguments, held in federal court in Portland, Ore.

The judges suggested they acknowledge the young plaintiffs are presenting injuries from climate change that meet the bar to bring legal action.

“You present compelling evidence that we have a real problem. You present compelling evidence that we have inaction by the other two branches of government. It may even rise to the level of criminal neglect,” Hurwitz said in an exchange with Julia Olson, who argued the case for the kids. “The tough question for me, and I suspect for my colleagues, is do we get to act because of that?”

Ninth Circuit’s Decision

The trio of Ninth Circuit judges is weighing the fate of the kids’ climate lawsuit. They must ultimately decide whether to allow the case to go to trial.

The arguments mark the second time Ninth Circuit judges have considered this question. A separate panel of judges in March 2018 rejected a prior attempt by the Trump administration to kill the case before trial. The case was just 10 days away from trial in October 2018 when the Supreme Court paused the lawsuit, and it has remained largely in limbo since then.

The lawsuit raises novel legal questions about climate change and whether the government has done enough to address it.

The young plaintiffs argue the U.S. government has violated their constitutional right to a livable climate by continuing over decades to develop and promote fossil fuels, the emissions of which contribute to global warming. They also claim the government has failed to protect the atmosphere as part of the public trust, which includes land, water, and wildlife, it must maintain for its citizens.

The Obama administration also opposed the lawsuit after it was filed in 2015 and fought to get it dismissed. If the kids ultimately win their case, the government could be forced to develop a comprehensive plan to cut greenhouse gas emissions across multiple sectors of the economy.

Scale of the Remedy

But the judges during the June 4 arguments appeared to question whether they had the authority to impose such a broad directive of the executive branch.

The young plaintiffs aren’t asking the government to strike down laws or to direct an agency to take a different action, but are asking for the court to affirmatively direct action of multiple agencies, Murguia said.

“I’m trying to figure out if we’ve done anything like that on this scale to this proportion, almost drawing from a clean slate. And what is your best authority, especially when you have implicated so many different agencies in your allegations?” she added in a question to Olson.

Olson responded that the “scale of the problem is so big” because the U.S. government has acted in a systemic way to develop and promote fossil fuels, contributing to climate change.

“This case is not a failure to act case,” Olson added. “The threat here is intensely affirmative.”

‘Massive Takeover’

This case is a “dagger at the separation of powers,” said Jeffrey Bossert Clark, assistant attorney general for the Justice Department’s Environment and Natural Resources Division, who argued the case for the government.

“There are no logical stopping points to Ms. Olson’s theory,” he added.

Clark argued that the plaintiffs should bring challenges against individual agency actions, rather than the entire federal government in a constitutional claim.

“This is a suit that is designed to circumvent a whole bunch of statutes,” Clark said. He also said the plaintiffs’ case attempts to stage a “massive takeover” of the government.

‘No Dispute’ About Climate

Legal observers noted the judges didn’t appear to question the gravity of the injuries from climate change that the young plaintiffs are alleging in the case.

There was “no dispute about causes or seriousness of climate change,” Michael Gerrard, an environmental law professor at Columbia University and director of the university’s Sabin Center for Climate Change Law, said in a tweet after the arguments ended.

But Jeffrey Wood, a partner with Baker Botts LLP who served as acting assistant attorney general of the Justice Department’s environment division, said the judges seemed averse to letting the case move forward because of the broad remedy the plaintiffs are seeking.

“The panel—though concerned with global climate change—seemed to have real heartburn over plaintiffs’ claim that the entirety of U.S. energy policy is unconstitutional to the extent it allows or promotes the use of fossil fuel energy,” Wood said in an email to Bloomberg Environment.

“It’s hard to imagine any court accepting that argument,” he added.

The case is Juliana v. United States, 9th Cir., No. 18-36082, oral argument 6/4/19.