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