The Government Is Trying to Silence 21 Kids Hurt by Climate Change

The U.S. has a climate policy, and it wants the Supreme Court to enforce it. That policy: No such thing.

Firefighters battle the Ferguson Fire in California, on August 8, 2018
Firefighters battle the Ferguson Fire in California, on August 8, 2018 (REUTERS)

On July 18, 2018, a crowd of young people demonstrated in front of the federal courthouse in Eugene, Oregon, to call attention to their lawsuit against the federal government. It was a classic Oregon summer day—morning clouds blowing off by midday, blue sky above, low humidity. Almost paradise. It was also, like virtually every day in July, hotter than average. And there was a hint of smoke in the air.

That smell of smoke was the first sign of the wildfires that would sweep the region, all but closing down tourist season in some resort destinations in the southern part of the state. This summer, much of the West burned. Other parts of the United States—the Gulf Coast and Florida and the Carolinas—drowned under storm surge.

No one event—fire, flood, storm can be attributed to climate change, but the science is clear: Rising temperatures are lengthening fire season, intensifying storms, and raising sea levels. Climate change is wreaking havoc on lives across the country and across the world. Virtually everyone with eyes—or, indeed, a nose—understands this, with the exception of a few leaders in Washington. That group of course includes President Trump, who recently said he thought the climate would “change back again.”

Those young people in Eugene have already been harmed by America’s environmental blindness. They want a chance to prove in court that government actions are hastening climate change, which, according to a United Nations panel report, will render much of Earth uninhabitable within their lifetimes.

But the government wants them out of court. Now. Before any testimony is heard.

This week, the government for the second time asked the Supreme Court to stop the young people’s lawsuit. In July, in an order signed by Justice Anthony Kennedy, the high court refused the same demand from the government. But this time, with Kennedy gone and Justice Brett Kavanaugh sitting in his place, the government may face better odds. On Friday, Chief Justice Roberts temporarily blocked the trial and asked the plaintiffs’ lawyers to file a response. That brief was filed Monday.

The plaintiffs argue that much of the federal government’s energy policy violates two sections of the Constitution—the due-process and equal-protection components of the Fifth Amendment, and the “unenumerated” Ninth Amendment “right to be sustained by our country’s vital natural systems.” They also claim that climate policy violates the common law “public trust doctrine,” which requires government to preserve public property, including lands and waters, for the use of future generations. Environmental lawyers and scholars have argued for decades that “public trust” law requires the government to maintain a livable environment.

The plaintiffs ask that the court order the government to “prepare and implement an enforceable national remedial plan to phase out fossil fuel emissions and draw down excess atmospheric CO2.”

Under the law as it stands, Juliana v. United States is a long shot. An entire raft of federal-court doctrines—they produce coma among my first-year constitutional law students—has grown up to prevent federal courts from hearing what are called “generalized grievances” against the government. To begin with, plaintiffs challenging government actions must have “standing to sue”—that is, they must have some individual claim, specific to them or to a small group, that the government is harming them in a “concrete” way. And they must show that a court could at least partially “redress” that harm by ordering the government to do, or stop doing, a particular thing. And finally, they must show that the issue they are raising is not “political”—meaning a question of policy that must be settled by the president and Congress.

The plaintiffs’ pro bono lawyers from Oregon and California have done their best to address these potential flaws. They carefully recruited these 21 young people who—for reasons of geography or occupation—live on the fringes of the climate, where the growth of greenhouse gases has already begun to make their lives untenable. The group includes Jayden Foytlin of Louisiana, whose home was rendered uninhabitable by a “1,000-year flood and eight 500-year floods in less than two years;” Levi Draheim, who lives in a home 13 feet above the rising sea in Satellite Beach, Florida; and Jamie Lynn Butler, a member of the Navajo nation who has had to leave her home on the reservation because the springs nearby dried up.

These stories are important not simply because they rend the heart; they are the kind of “concrete injury” the federal courts require.

In the past, the Supreme Court has held that federal courts can hear complaints against the federal government on the matter of climate change. In the 2006 case Massachusetts v. Environmental Protection Agency, Massachusetts argued that it had been “injured” by rising sea levels along its coast, which had deprived the state of oceanfront land. EPA argued that it didn’t have statutory authority to regulate greenhouse emissions from cars and trucks; besides, the agency said, regulation wasn’t worthwhile because global warming would continue anyway. A five-justice majority held that the agency did have the authority to regulate, and should. EPA regulation wouldn’t save the planet by itself, Justice John Paul Stevens wrote; but “[t]he risk of catastrophic harm, though remote, is nevertheless real. That risk would be reduced to some extent if petitioners received the relief they seek.”

In Juliana, the government has argued that the young plaintiffs don’t have standing and that their claim is “nonjusticiable.” The District Court, and the Ninth Circuit, have both rejected that claim and ordered trial to begin on October 29. Now the government is demanding that the Supreme Court simply revoke the order and block the trial. That kind of request is not unheard of, but it is extraordinary. Generally, the government would make its standing and “political question” claims on appeal, after the initial trial.

The government’s argument relies on Cheney v. U.S. District Court, which stopped a lawsuit against Vice President Dick Cheney by an advocacy group challenging his largely secret National Energy Policy Development Group. The plaintiffs were seeking to question Cheney and other high officials about whom the Vice President had relied on in examining energy policy.

It was “special considerations applicable to the President and the Vice President,” the Supreme Court said, that required it to step in and block discovery. Even so, it did not dismiss the case entirely, but instead returned the government’s petition to the court of appeals with instructions to determine whether the discovery requests burdened high officials.

In Juliana, the plaintiffs have not requested intrusive discovery. Instead, they have scoured public government documents, and relied on the testimony of their independent experts, for most of the evidence they seek to present. They are asking the government to respond and provide some written answers and testimony, mostly by career officials, to authenticate the documents they already have.

The government’s petition for relief doesn’t even claim that discovery is the issue. “Absent a stay, the government will be forced to proceed with a 50-day trial that is fundamentally inconsistent with Article III and the separation of powers under the Constitution,” it argues. “Plaintiffs’ efforts to require the defendant agencies to develop and implement a comprehensive, government-wide energy policy outside of the congressionally-prescribed statutory framework runs roughshod over fundamental separation of powers principles.”

There are strong arguments in support of that position. The government, however, wants the Supreme Court to declare that it is so totally right that merely being sued is a violation of the Constitution. It isn’t. Whether or not this lawsuit is the proper vehicle for addressing the pressing issue, the plaintiffs should have the opportunity to present their case. If some claims are improper, the trial court can separate the wheat from the chaff.

In writing about Juliana I, as the British say, declare an interest—in fact, five interests all told. The first is that the “public trust” arguments in Juliana were in large part developed by Oregon Law Professor Mary Christina Wood, a former colleague and admired friend.

That kind of “interest” comes up often when writing about law. But the other four are more compelling: They are my four beautiful grandchildren, all under 5 years old, who must live in the burning world my generation seems so determined to leave behind. Two of them were with me on that trip to Oregon last summer. A few weeks later, I hiked with them and their parents on the Cleetwood Cove Trail, which descends a vertiginous 700 feet in one mile from the rim drive around Oregon’s Crater Lake to the edge of the lake itself. Formed more than 7,700 years ago by a volcanic eruption, Crater Lake is more than 2,000 feet deep—the deepest body of fresh water in the U.S.  At the cove, visitors can swim for as long as they can tolerate the cold; we had to drag the boys out eventually and carry them back up to the rim. Although no one can predict what a child will remember years later, it was a day I at least will never forget.

But the smoke was thicker that day than it had been in July. Viewed from the rim, the lake was obscured by a thick haze. The Park Service was forced to cancel the next afternoon’s guided nature walks and children’s activities. The kids stuck it out until noon; I left that morning.

Our world is burning in front of our eyes, and what Juliana tells us is that our children know it. The government fears these 21 children; it asks the Supreme Court to tell them they do not even deserve a chance to fail.

The U.S. has a climate policy, and it asks the Supreme Court to enforce it. That policy is: Donald Trump says there is no such thing as climate change. The rest of us, young and old, need to shut up and burn.