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Weighing Kids’ Climate Lawsuit, Judges to Probe Courts’ Role

June 4, 2019, 10:31 AM

The kids’ climate lawsuit faces a critical inflection point: A trio of federal appellate court judges could breathe new life into the case or kill it altogether.

The lawsuit—brought in 2015 by 21 youth plaintiffs ranging in age from 10 to 21—has already faced a yearslong winding road. The June 4 oral arguments mark the second time that judges on the U.S. Court of Appeals for the Ninth Circuit will consider whether to halt the case before trial. The Supreme Court has twice weighed in, the last time just 10 days before a trial was slated to begin.

The case, Juliana v. United States, tackles a consequential issue, climate change, by asking novel questions involving big legal dogmas—the Constitution and the public trust doctrine—with potentially significant consequences.

If the kids are successful, it could force the government to develop a comprehensive plan to reduce greenhouse gas emissions across multiple sectors of the economy.

“We’ve never had a case before where the literal existential question of whether the world as we know it is going to end has ever been presented,” William Snape, a fellow and practitioner-in-residence at American University Washington College of Law, told Bloomberg Environment. Snape helped write an amicus brief supporting the plaintiffs.

But the Ninth Circuit’s decision about whether to advance the case to trial could also signal how the federal courts view their role in addressing climate change, and whether they should step in when the public accuses other government branches of failing.

“The kinds of policy concerns that are central to plaintiffs’ lawsuit are exactly the kinds of policy questions that the executive and legislative branches have been grappling with for decades,” said Jeffrey Wood, a partner at Baker Botts LLP. Wood served as acting assistant attorney general for the Justice Department’s Environment and Natural Resources Division for nearly two years.

“That’s what this case fundamentally is about: which branch of government is properly situated to make these complex choices between often competing considerations like economic growth, national security, foreign policy, and the environment,” he said.

Going to Trial

The young plaintiffs argue the U.S. government violated their constitutional right to a livable climate by perpetuating a fossil fuel-based economy that contributes to global warming. They also argue the government has failed to protect the atmosphere as part of the public trust it must maintain for its citizens.

Judge Ann Aiken, the federal district court judge in Oregon overseeing the case, has consistently said the lawsuit should go to trial.

But the Trump administration, and the Obama administration before it, have fought to prevent that from happening. Attorneys in both administrations have expressed concerns that the case, if successful, could result in a broad, binding directive from the courts on how the executive branch should set climate policy.

On the panel for the June 4 arguments are three judges appointed by former President Barack Obama—Ninth Circuit Judges Mary Murguia and Andrew Hurwitz and Central District Court of California Judge Josephine Staton.

The plaintiffs hope Aiken will quickly set a trial date if the Ninth Circuit decides to advance the case, said Philip Gregory, an attorney with Gregory Law Group who represents them. The plaintiffs have argued in legal filings that the Ninth Circuit erred in even taking the case at this point.

Gregory said the federal government can present any evidence countering plaintiffs’ claims and proposed remedy, or how the court should order the government to address climate change, during a trial.

“We have yet to see in this case, even though we were 10 days before trial, any evidence from the federal government that it cannot convert over to a national energy system that is not based on fossil fuels,” Gregory said.

Separation of Powers

But the Justice Department argues that the courts don’t have the jurisdiction to take this type of case because the lawsuit is challenging a system of developing and promoting fossil fuels, rather than a specific government action.

For a court to direct as broad a remedy as the young plaintiffs are seeking would violate separation of powers, the government has said in legal filings.

“That is essentially saying if the political branches of our government can’t solve a problem, then there is no remedy,” said Joanne Spalding, chief climate counsel for the Sierra Club.

Spalding helped write an amicus brief for the Sierra Club supporting the plaintiffs. The Sierra Club has received funding from Bloomberg Philanthropies, the charitable organization founded by Michael Bloomberg. Bloomberg Environment is operated by entities controlled by Michael Bloomberg.

The logjam in Congress and the Trump administration’s failure to act makes this “precisely the kind of case where the court should step in,” Spalding said.

Global or Individual Harms

The judges’ first decision will be whether the plaintiffs have standing to bring the case.

Plaintiffs’ supporters say they have made a strong showing, down to affidavits detailing injuries that individual plaintiffs faced due to the impacts of climate change. Those include testimonies showing that intensifying extreme weather events and sea-level rise forced some of the young plaintiffs to evacuate their homes. Plaintiffs’ attorney Gregory noted that Aiken, the Oregon court judge, already did an extensive analysis finding the plaintiffs had standing.

“I think the only way they lose” on standing “is if the court basically concludes that no one ever has standing to bring cases about climate change,” said Shaun Goho, deputy director and senior staff attorney at Harvard Law School’s Emmett Environmental Law & Policy Clinic. Goho helped write an amicus brief with a group of public health professionals backing the plaintiffs.

But the Justice Department has argued that climate change is a global concern and plaintiffs haven’t shown injuries beyond generalized grievances that any person might face.

Environmental Protection Agency Administrator Andrew Wheeler also expressed skepticism that the young plaintiffs had standing.

“I don’t think it’s going to go much further,” Wheeler said of the case during June 3 remarks at the National Press Club in Washington.

“I think if we didn’t move forward with climate regulations, then people would have standing to challenge us for that,” Wheeler added. “As far as standing to challenge what might happen 50 to 70 years from now, I don’t know that they do.”

The Remedy

Judges are also likely to grapple with whether the courts can impose the broad type of remedy the young plaintiffs are asking for, observers said. Although courts have granted broad, systemic relief before, they are uncomfortable if they feel they are stepping outside their judicial role, Goho, from Harvard Law School, said.

But American University’s Snape said the plaintiffs have already done some work to narrow the potential remedy for the courts. In February, they filed a motion for emergency injunction asking for a moratorium on fossil fuel drilling on federal lands. Even if the court doesn’t grant it, the motion offers a “blueprint” for how the court could address plaintiffs’ claims, Snape said.

Baker Botts’ Wood, however, said the plaintiffs’ motion could reinforce some of the government’s arguments.

The Justice Department has consistently said the plaintiffs’ case should be brought under the Administrative Procedure Act and challenge specific federal regulations or decisions, such as fossil fuel leasing on federal lands, rather than levy a broad constitutional challenge.

“Plaintiffs’ request for an emergency injunction reinforces the view of many that this lawsuit is more about attracting attention to an issue than about actually obtaining judicial relief,” Wood said.

‘Strong Headwind’

But plaintiffs’ supporters say the case is significant because it tackles the systemic forces keeping the government from adequately acting on climate change.

“Sierra Club and many other organizations and states have been working for decades to try to reduce our reliance on fossil fuel” through the political branches and the courts, Spalding said. They have made progress, “but there’s a very strong headwind of federal policy that makes that very difficult to achieve,” she said.

Were the courts to ultimately side with the plaintiffs, they would be saying the government “can no longer hide behind the pseudo-complexities of climate science to say you’re still having a debate,” American University’s Snape said.

In similar cases in other countries, no court has dictated exactly what governments must do to address global warming, “but in all instances, they’re not allowing the government to provide any more lame excuses,” Snape added. “They’re forcing the government to provide real solutions and real science.”

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

To contact the reporter on this story: Abby Smith in Washington at

To contact the editors responsible for this story: Gregory Henderson at; Jean Fogarty at; Anna Yukhananov at