Bloomberg -- When a group of 21 kids sued the federal government a couple of years ago for failing to protect the country’s air, land and water, it didn’t seem likely to get very far.
The case has survived several challenges, and on Monday, the group of youths -- now almost all teens -- and the Justice Department will argue over whether Americans can claim damaging environmental policy as a violation of their constitutional rights to due process and equal protection. A ruling allowing the case to move toward trial would be the first of its kind by an appeals court and almost certainly be reviewed by the Supreme Court.
The kids from Oregon -- and a group of plaintiffs dubbed “future generations” -- claim the government is legally liable for more than 50 years of policies that have hurt the country’s “climate system.” They say the office of the president and eight federal agencies have promoted regulations to support the U.S. energy industry’s proliferation of fossil fuels, accounting for a quarter of the world’s carbon emissions.
The judge who let the suit proceed in a landmark November 2016 ruling said it was “of a different order than the typical environmental case,” brought under federal laws such as the Clean Water Act or the Clean Air Act.
“It alleges that defendants’ actions and inactions -- whether or not they violate any specific statutory duty -- have so profoundly damaged our home planet that they threaten plaintiffs’ fundamental constitutional rights to life and liberty,” U.S. District Judge Ann Aiken wrote.
That was a “novel and unusual decision” that immediately raised the stakes in the case, said Michael Gerrard, a professor of environmental law at Columbia Law School.
Justice Department attorneys argue the teens are calling for unreasonable changes to federal policy based on “utterly unprecedented legal theories” and “unbounded” research into the executive reaching back to the Lyndon Johnson presidency.
The suit was filed in August 2015 when Barack Obama was president, under an administration that could point to having brokered a global carbon emissions reduction deal in Paris with more than 180 nations and a domestic Clean Power Plan that called for less coal consumption and more use of renewable energy.
The current administration has taken a different approach, stating its intention to withdraw from the Paris accord, among other regressive climate postures. The suit threatens Donald Trump’s “America First” ambitions of re-establishing the coal industry and expanding offshore drilling, among other things.
A three-judge panel, made up of two Bill Clinton appointees and one Ronald Reagan appointee, will determine if it will keep going to a jury trial.
A win for the teens before the U.S. Court of Appeals in San Francisco could prompt the government to seek the U.S. Supreme Court’s review, while an outright dismissal may mark its end because of the top court’s “current composition,” Gerrard said, referring to the court’s conservative majority. The appeals court also may send the case back to the lower court for further review.
“What it can’t do is shut the courthouse doors to the real constitutional injuries brought by these young people,” said the teens’ attorney, Julia Olson. “We believe the Ninth Circuit will be the bulwark against their dodge and evade tactics.”
Should the case move toward trial, the Justice Department may have trouble recruiting credible scientists to testify on their behalf. In May, a pair of government attorneys met with Ken Caldeira, an atmospheric scientist at the Carnegie Institution for Science, to gauge his interest in leading a team of researchers to testify on behalf of the government. Caldeira declined, pointing to the administration’s problems with trust and credibility.
“I had a good impression of the lawyers; they said their goal was to provide the best available scientific evidence,” Caldeira said in an interview. “But my name being associated may give credibility to their case, and with this administration there’s a concern about being edited and taken out of context.”
Trump, a real estate developer and former reality television star, has called climate change a hoax. Still, the central question of the litigation isn’t whether climate change is real, but whether the U.S. government has for decades violated the constitution by willfully allowing harm to the environment.
The kids have asked for a court order directing Trump’s office to prepare a consumption report on U.S. carbon emissions, along with a remediation plan to phase out the country’s dependence on fossil fuels.
Olson, the kids’ attorney, argues the damage that’s occurred in the past 50 years is already irreversible and the teens are just hoping to prevent a bad situation from getting worse. She has made similar claims in state courts, with some success.
In Washington state, a court ruled in November 2015 that youth plaintiffs’ “very survival depends upon the will of their elders to act now,” ultimately ordering the state’s Department of Ecology to adopt a rule to limit emissions. In Massachusetts, litigation prompted Governor Charles Baker to issue a proclamation that requires the state to prepare a comprehensive energy plan before August 2018.
The lower court case is Juliana v. U.S.A., 15-cv-01517, U.S. District Court, District of Oregon (Eugene).