The following article by Natasha Geiling was posted on the ThinkProgress website February 5, 2018:
The youth climate lawsuit against the Trump administration was supposed to start today.
If Jacob Lebel were to be in district court today, as originally planned, he would want people to know that every action has a reaction.
“When you take an action or vote for somebody, that translates to killing the Barrier Reef or killing-off ecosystems or affecting some of our natural resources that we depend on,” said Lebel, a 20-year-old student who is a part of an unprecedented move to take the federal government to court over climate. “That is like killing an organ in our collective body. That has real impacts on people.”
Lebel, along with a group of 20 other kids, was supposed to be in court on February 5 for the first day of trial against the Trump administration — a lawsuit, known as Juliana v. United States, which alleges that the federal government has endangered the plaintiffs right to a livable climate. After more than two years of legal back and forth over whether the plaintiffs would be allowed to argue their case in court — a process lengthened by several appeals from the government — a federal judge in Oregon ruled in June that the lawsuit could proceed to trial.
But the plaintiffs won’t spend Monday in court, as originally planned. Instead, the case is on hold, at least temporarily, while the a federal appeals court considers a challenge to the case by the Trump administration — a motion so unusual that legal experts have called it “truly extraordinary.”
Lebel is disappointed that he won’t be heading a few hours north from his home in southern Oregon, to a district court in Eugene, Oregon, to publicly argue for a right to a livable climate for future generations. But he’s optimistic that the youth plaintiffs will get their day in court soon.
“Obviously the delay is a disappointment,” Lebel said. “We need to go to trial promptly. The Trump administration and climate change are on very fast and destructive timelines right now, so we need to match that.”
If and when Lebel and his fellow plaintiffs get a chance to go to court is now in the hands of the Ninth Circuit Court of Appeals, which in mid-December heard arguments from both sides of the lawsuit over an unusual motion filed by the Trump administration. Known as a writ of mandamus, the motion asked the Ninth Circuit Court to step in and reverse the lower court’s decision that the case could proceed to trial — essentially asking the higher court to overturn the district court’s decision before the case was fully argued.
Attorneys for the youth plaintiffs and the federal government argued their positions before a three-judge panel comprised of Chief Judge Sidney Thomas, a Clinton-appointee, Circuit Judges Alex Kozinski, a Reagan-appointee, and Marsha Berzon, a Clinton-appointee.
At the time, Department of Justice Attorney Eric Grant argued that a combination of many factors — including claims that the case was “meritless” and that the process of discovery would be overly burdensome for the government — should be enough for the higher court to rule in the Trump administration’s favor. At least two judges — Berzon and Thomas — did not appear particularly swayed by the government’s case. Kozinski — who appeared the most skeptical of the youth’s arguments — has since stepped down from the Ninth Circuit following credible allegations of sexual misconduct. The panel has yet to issue a ruling on whether the case can move forward to trial or not.
If the lawsuit is allowed to proceed to trial, it will be the first time that the government has had to face allegations of violating Constitutional rights through its climate policies. Much of the plaintiff’s case relies on a novel legal theory put forward by University of Oregon law professor Mary Wood known as “atmospheric trust law,” which takes it name from a foundational legal theory known as the public trust.
The public trust holds that certain elements — traditionally things like shorelines, or rivers — are commonly-held, and therefore it’s the responsibility of the federal government to preserve those for use by the public. Atmospheric trust takes that theory and applies it to the atmosphere, arguing that since the atmosphere is a commonly-held element shared by everyone, it’s the government’s duty to take care of it for future generations. The case also argues that by failing to preserve a livable climate for future generations, the federal government is denying the youth plaintiffs their Constitutional right to due process.
Legal experts are quick to note that the case, while unprecedented, faces an uphill battle in the courts. Courts have historically been reluctant to weigh in on climate change cases, arguing at times that the questions are too political for the judicial branch, and that a remedy for climate change lies instead with the legislative or executive branch. But beyond a ruling in the plaintiffs’ favor, Lebel and others were excited for trial because it would present the opportunity for climate scientists and experts to testify, publicly, on the current state of the climate crisis.
“For far too long the government has been allowed to collude with the fossil fuel industry to deny us our right to a livable planet,” Nathan Baring, a 18-year old plaintiff in the case, told ThinkProgress via email. “I was most looking forward to putting science in a venue where alternative facts and misinformation can no longer play a role in a debate about future U.S. energy policies.”
The lawsuit, which was first filed in 2015 against the Obama administration, has become one of the most high-profile examples of a growing movement to use the judicial branch to hold the government and fossil fuel companies accountable for climate action. To date, nine cities and counties — including San Francisco, Oakland, and New York City — have filed lawsuits against fossil fuel companies for their role in knowingly perpetuating climate change. Those lawsuits, all filed by coastal communities, seek to recoup costs associated with climate adaptation and mitigation projects, which some cities estimate could reach as high as $20 billion.
For Baring, however, the youth climate lawsuit isn’t about money or notoriety — it’s about letting the world know that even though they might be too young to vote, kids deserve a voice in the climate change debate.
“I don’t want money, I want the guarantee that my right to a sustainable future doesn’t run second to a system that puts short term gain ahead of people,” Baring said. “I don’t think that’s too much to ask. It’s time that youth are given an equal seat at the table to advocate for their future and the court system is a place to make that happen.”
View the post here.