'Climate kids' lawsuit faces critical hearing
The 21 young people who sued the federal government over climate change four years ago have gained a wide swath of supporters as the case has bounced from one legal challenge to the next.
Another 32,340 people representing all 50 states -- most of them 25 or younger -- have signed on to one of 15 friend-of-court briefs filed this year.
Eight members of Congress, including four from Oregon, as well as environmental history professors, eco-justice ministers, dozens of international lawyers, scientists and public health experts have filed the other briefs.
They all urge that the long-delayed case, first filed in 2015 in Oregon, be allowed to go to trial.
Meanwhile, a national federation of independent businesses, as well as oil companies and a trucking association are backing the government’s push to dismiss the suit.
A three-member panel of the 9th U.S. Circuit Court of Appeals will hear oral arguments at 2 p.m. Tuesday in an expansive 16th floor courtroom at the Mark O. Hatfield Courthouse in downtown Portland, with an overflow room for the anticipated crowd.
Supporters of the suit are expected to rally at nearby Director Park and watch a livestream feed of the hearing in a case that’s turned into a growing global youth crusade.
The movement — and the lawsuit — have attracted the attention of many leading scholars studying climate change today.
Drawing on the name of the lead plaintiff in the case, Kelsey Cascadia Rose Juliana, 23, of Eugene, a group of public health and medical experts said it shares an urgency to help the “Juliana Generation.’’ They have documented the harmful impacts of greenhouse gas emissions on people born in the United States since 1995, they said in one of the friend-of-court briefs.
"This generation is suffering — and will continue to suffer as they age — harms different from those of prior generations,’’ wrote Shaun A. Goho, deputy director of Harvard Law School’s Emmett Environmental Law & Policy Clinic. He represents dozens of physicians, professors and 15 public health organizations, including the American Academy of Pediatrics, American Heart Association, American Lung Association and National Medical Association.
The young people in their lawsuit asserted a constitutional right to a “climate system capable of sustaining human life’’ and contend the government has violated that right and the public’s trust.
They’ve asked a trial judge to order eight federal agencies to prepare a “national remedial plan” to phase out fossil fuel emissions, draw down excess atmospheric carbon dioxide and then monitor compliance.
An Oregon judge, U.S. District Judge Ann L. Aiken of Eugene, decided in October 2018 to allow the case to proceed to trial. At the same time, she dismissed President Donald Trump as a defendant, citing respect for the separation of powers and calling his involvement non-essential because lower-level government officials carried out the challenged policies.
The government unsuccessfully petitioned the U.S. Supreme Court last November to stop a scheduled trial. But days later, a 9th Circuit panel temporarily halted the trial while a government appeal of Aiken’s ruling proceeds. The 9th Circuit later agreed to fast-track the government’s appeal.
“Time is not our friend on this issue,’’ said Andrea Rodgers, one of the plaintiffs’ lawyers. “While the children in this case have been getting older, the climate changes that are facing them are unprecedented. We hope that’s something that will resonate with the court.’’
Government lawyers call the suit “misguided,’’ arguing that it’s not up to a federal district judge to require the government to stop global climate change. A single judge, the government contends, “may not” seize control of national energy production, energy consumption or transportation and doesn’t have the power to perform such a sweeping policy review related to fossil fuels, public lands or air quality standards.
They argue that the young people have a “generalized’’ grievance and can’t point to particular injuries directly tied to government conduct, largely because climate change stems from a “world web of actions.’’
The Administrative Procedure Act created by Congress, they say, is the proper avenue for challenging federal agency actions.
The plaintiffs counter that an appeals court shouldn’t dismiss the case before a trial is held to gather evidence.
Their injuries are specific and deeply personal, they argue, pointing to the flooding of one boy’s house and school, another boy’s lost recreation from watching his island’s coral reefs die and beaches disappear and other plaintiffs’ asthma and allergies from exposure to hazardous wildfire smoke.
“They have concrete individual harms that don’t rest on a ‘global universal harm,’” their lawyers wrote.
The young people — now between the ages of 11 and 23 - push back at the government’s notion that a court can’t examine the constitutionality of government practices.
“Defendants’ theory that the judiciary is without power to assess the constitutionality of large and pervasive government policies and systems would have been the downfall of cases addressing desegregation, prison reform, interracial and same-sex marriage, and the rights of women to serve on juries and have access to contraception, among other rights,’’ their lawyers wrote to the appeals court.
In February, a youth-led climate justice organization called Zero Hour launched a nationwide campaign to seek supporters for the Juliana suit and more than 30,000 signed up in less than two weeks. Another group called Sunrise Movement Education Fund, a national nonprofit mobilizing young people to stop climate change, submitted essays from 30 students to the appeals court.
Among them were Sophia Nolan, 17, of Maine, citing concerns about future floods and declining lobster populations in her hometown, and Leon Zha, 17, of Northern California, who wrote that wildfires in October 2017 made it feel like “the end of the world’’ and that he could barely breathe from particles that stung his eyes, nose and throat.
On Saturday, environmental groups have coordinated news conferences and rallies around the world to show solidarity with the group of youths who filed the suit and became known collectively as the “climate change kids.”
“Climate change is the most pressing issue for our generation,’’ said Katie Eder, 19, executive director of Future Coalition, a national network that helps coordinate youth-led groups. “We’re supporting the Juliana plaintiffs as they fight for our future in court by fighting alongside them in our communities.’’
The plaintiffs also will urge the appeals panel to order the government to halt further steps that could be detrimental to the climate while the appeal is pending: issuing leases or mining permits for extracting coal on federal public lands, leases for offshore oil and gas exploration or approvals for new fossil fuel infrastructure.
One of the plaintiffs, 19-year-old Nathan Baring, of Fairbanks, Alaska, flew Thursday into Oregon to attend next week’s hearing. Baring said he’s seen the effects of climate change in Alaska, including milder winters, the melting of permafrost and erosion of coastal communities. He said he’s inspired by the support of well-respected, top public health experts and is buoyed by the growing attention to the case.
“I’m pretty astounded at how long it’s taken us because of the delay tactics of the government,’’ Baring said. “It’s pretty obvious to me they’re doing it because they don’t want the public to see the facts of the case. ... I think we’re in the proper time for this hearing. We’re confident the conversation on climate change in this country has shifted dramatically.’’
The National Federation of Independent Business, Western States Trucking Association, Merit Oil Co. and Liberty Packing Co. have filed a joint friend-of-the-court brief supporting the government, represented by lawyers from the Texas Public Policy Foundation.
They dismiss the argument that the federal government should be held accountable as “trustees of public trust resources’’ that transcend state borders, including the air, atmosphere, oceans, wildlife and federal public lands.
Theodore Hadzi-Antich, attorney for the Texas Public Policy Foundation, contends the public trust argument is a matter of state law, not federal law.
“No court has ever recognized a federal common law public trust doctrine in natural resources, let alone air resources,” he wrote. “In fact, the sweeping new regulatory agenda for greenhouse gas emissions sought by Juliana is unprecedented in federal jurisprudence.’’
Democratic lawmakers, including U.S. Sens. Ron Wyden and Jeff Merkley of Oregon, Sheldon Whitehouse of Rhode Island, and U.S. Reps. Peter DeFazio and Earl Blumenauer of Oregon, Debra Haaland of New Mexico and Rashida Tlaib of Michigan, have urged the appeals court to allow the suit to be heard at trial.
In a joint brief they wrote, “Given the urgency of climate change and the allegations that the federal government’s historic and ongoing actions have substantially caused the climate crisis, the Court must exercise its core and traditional duty to assess the constitutionality of the conduct challenged based on the scientific evidence, not on politics.’’