Communities on both US coasts are in the heartbreaking position of putting their lives back together after suffering devastating natural disasters of the sort that are increasingly common in our warming world. California recently saw the deadliest wildfires in its recorded history, and Florida’s panhandle is continuing cleanup from one of the most powerful hurricanes ever to make recorded landfall in the US.
Meanwhile, the youth plaintiffs in Juliana v. United States find themselves back in legal limbo, uncertain whether they will have the chance to demonstrate in a courtroom that the US government should be held accountable for its role in our ongoing climate crisis.
In 2015, 21 young people, now aged 11 to 22, brought their complaint to the federal district court in Oregon, asserting that the government’s decades-long encouragement of fossil-fuel extraction and consumption so drastically destabilized the climate that it violates the US Constitution. The case has been set for trial twice, and twice the government’s lawyers have convinced higher courts to intervene and delay the proceedings.
In the latest installment of the Juliana saga the Oregon district trial judge overseeing the case agreed November 21 to allow the government to bring an appeal to the Ninth Circuit Court of Appeals.
Typically, parties must wait until a lawsuit has concluded in the district court before bringing an appeal. But, in the Juliana litigation, the government has aggressively fought to short-circuit that process, hoping to prevent the eight-week trial from ever taking place.
The Ninth Circuit is commonly considered a liberal-leaning court. President Donald Trump has repeatedly criticized its decisions, recently claiming that it “automatic[ally]” rules against his administration.
But its judges have expressed a degree of skepticism about the Juliana plaintiffs’ claims. At one point, they observed that some claims are “quite broad” and that all of their requested remedies may not fall within the reach of the judicial branch. Indeed, it was the Ninth Circuit that undoubtedly pressured the district court to accelerate the usual orderly appeal process.
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On November 8, the Ninth Circuit not only temporarily halted the case from moving forward in the district court, but in a not-so-subtle bid to influence the outcome, it implied that the government had satisfied the primary legal threshold for an early appeal.
The government disputes a number of the district court’s rulings. The one that has received the most attention is the judge’s conclusion that a climate system “capable of sustaining human life is fundamental to a free and ordered society,” and is therefore protected by the US Constitution. That groundbreaking, literally unprecedented decision will now likely come under the scrutiny of the Ninth Circuit, and potentially the Supreme Court as well.
The proceedings in district court remain on hold while the parties once again submit their legal arguments to the Ninth Circuit and await its next decision, which could be months from now. Unfortunately, as has been well documented, time is not on our side if we hope to preserve a “climate system capable of sustaining human life.”
This month, the countries of the world are convening in Poland to discuss the implementation of the historic Paris climate agreement. The US has sent a delegation despite President Trump’s vow to withdraw from the treaty. Meanwhile in the United States, his administration continues its systematic campaign to dismantle every major Obama-era initiative intended to reduce US greenhouse gas emissions.
Michael Mayer practiced environmental law in the Northwest for close to a decade and now teaches climate change law at Seattle University School of Law.
THERE IS NO “PLANT B ” FOR ALL OF US TO MIGRATE TO, THEREFORE DUTY REQUIRES US TO TEND TO OUR HOME PLANET. OF COURSE THERE HAVE BEEN CLIMATE UPHEAVLES BEFORE, BUT THE PLANET HS NEVER HAD AS MANY BILLION INHABITANTS AS NOW. WE ARE GUILTY OF OVER AND IMPROPER USE OF OUR BOUNTY !! MAY THIS ACTION PROCEED.