our child juliana bak OCT

see main for older

promoted to primary, hope

triple threat/ pincer/whammy: natural gas, CPP and lawsuit

see RICO GW,

also COURTS 2

capt 619

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assert 1st? 5th and 9th amendment protections

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Levi Draheim

https://www.linkedin.com/in/levi-draheim-353a2b192/

Student at Our Children's Trust

Melbourne, Florida, United States

Contact info

Our Children's Trust

connections

Connect

Message

https://www.ourchildrenstrust.org/levi

facebook.com/connectwithLevi

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9 25

History is being made in Missoula, and you can be part of it. The two-day hearing in Lighthiser v. Trump starts tomorrow — Tuesday and Wednesday, September 16-17, at the federal courthouse in Missoula, Montana.

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ICN 6 25

A group of 22 young people from across the country accuse the Trump administration in a new federal lawsuit of violating their constitutional rights with a coordinated set of executive orders that prioritize the expansion of fossil fuels and threaten to further destabilize the climate.

The complaint, filed Thursday in the U.S. District Court in Montana, challenges three executive orders: “Unleashing American Energy,” “Declaring a National Energy Emergency” and “Reinvigorating America’s Beautiful Clean Coal Industry.” The lawsuit argues that with the orders, the Trump administration knowingly is advancing an agenda that will increase greenhouse gas pollution that already is stressing the global climate to a dangerous extent.

The litigation argues the situation infringes on the young people’s constitutional rights to life and liberty, as well as falling afoul of other laws approved by Congress that protect public health and the environment. The plaintiffs want the court to declare the executive orders unconstitutional, block their implementation and reaffirm the legal limits on presidential power.

“From day one of the current administration, President Trump has issued directives to increase fossil fuel use and production and block an energy transition to wind, solar, battery storage, energy efficiency, and electric vehicles (“EVs”),” the lawsuit states. “President Trump’s EOs falsely claim an energy emergency, while the true emergency is that fossil fuel pollution is destroying the foundation of Plaintiffs’ lives.”

The complaint was filed on behalf of young people from Montana to Florida, ranging in age from 7 to 25, who have experienced wildfires, floods, hurricanes and extreme heat. Some have been displaced from their homes.

Others have endured health harms, such as a 7-year-old boy, identified by the initials J.K. in the lawsuit because he is a minor, who suffers from frequent respiratory infections. The infections are exacerbated by wildfire smoke and have landed him in the hospital. Greenhouse gas emissions, including those associated with fossil fuels, are heating the global climate, shifting weather patterns and leading to more extreme events such as wildfires and hurricanes.

Many of the plaintiffs are pursuing college degrees and careers in environmental science, and their research and professional goals have been disrupted as the Trump administration has eliminated jobs and funding for clean energy, climate research and decarbonization. Ula Jones, 18, was told by professors that some classes she planned to take may be eliminated. A 17-year-old who is identified by the initials J.M. in the litigation had helped her school secure a $400,000 grant from the Environmental Protection Agency for two electric buses, but the school never received the funding.

Some plaintiffs also have experienced mental anguish over the uncertainty climate change has cast on their futures. Among them is Olivia Vesovich, 21, who lives in Missoula, Montana.

“There are days when Olivia feels paralyzed by the devastation wrought by climate change to her state and community,” the lawsuit states. “Olivia’s climate anxiety is like an elephant sitting on her chest; it feels like a crushing weight, making it hard for her to breathe.”

The plaintiffs are represented by Our Children’s Trust, the Oregon-based advocacy group that previously brought the closely watched case Juliana v. United States, which sought to hold the federal government accountable for an energy system based on fossil fuels. That lawsuit claimed the government knew since 1965 that burning fossil fuels would lead to dangerous climate change.

The U.S. Supreme Court declined this spring to hear the case, ending the 10-year legal effort. But Our Children’s Trust said the legal framework established by Juliana inspired more than 60 youth-led lawsuits worldwide. In 2023 the group celebrated a groundbreaking victory in Montana, the first time a court in the U.S. declared that a government had a constitutional responsibility to protect people from climate change. The next year the group reached a settlement in Hawaii that included a plan to decarbonize the state’s transportation system.

Our Children’s Trust filed the latest litigation over the Trump administration’s executive orders in partnership with the Gregory Law Group, McGarvey Law and Public Justice.

In addition to President Donald Trump, the lawsuit names as defendants multiple administration leaders and departments, including the EPA, Department of Transportation, National Science Foundation and the Department of Health and Human Services.

“The American people are more concerned with the future generations’ economic and national security, which is why they elected President Trump in a landslide victory to restore America’s energy dominance,” said Taylor Rogers, White House assistant press secretary, in a statement provided to Inside Climate News. “Future generations should not have to foot the bill of the lefts’ radical climate agenda.”

A recent report by risk management experts warned that climate change could cut the worldwide gross domestic product in half between 2070 and 2090. And last year, the U.S. was hit by 27 billion-dollar disasters.

Eva Lighthiser, a 19-year-old recent high school graduate living in Livingston, Montana, is one of the plaintiffs. Flooding destroyed roads and bridges near where she lived, forcing her family to relocate to a different town. Wildfire smoke leaves her short of breath and causes other symptoms such as headaches. She plans to study environmental science in college and worries about whether the Trump administration may limit her access to climate science and data.

“It’s incredibly important to stay involved in this,” she said. “These are our futures that we’re inheriting. It’s vitally important that we do our best to preserve those.”

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12 23 ymail no lnx

On Sunday, December 10, eighteen children under 18 filed a new federal constitutional climate lawsuit against the U.S. Environmental Protection Agency (EPA) in the U.S. District Court in the Central District of California.

Genesis B. v. United States Environmental Protection Agency asserts that for decades the EPA has intentionally allowed life-threatening climate pollution, despite knowing the harm it causes to children’s health and welfare. The plaintiffs also claim that the EPA has discriminated against them as children by devaluing their lives and their future when it decides whether and how much climate pollution to allow.

In 1970, Congress gave EPA the authority and the mandate to manage the nation’s air quality and control pollution to protect human health and welfare.

The worsening impacts of the climate crisis in the West have injured the lives of every youth plaintiff. Fire and floods have destroyed and damaged homes and forced evacuations. Smoke and extreme heat have resulted in serious health harms—from severe depression and anxiety to asthma, heat exhaustion and fear for their lives.

OXFAM PARTNER

6 23 y mail montana

June 16, the court will hear testimony from Dr. Lise Van Susteren, a psychiatrist and expert on how the climate crisis affects the physical and mental health of youth; Mark Jacobson, Director of the Atmosphere/Energy Program at Stanford University; and youth plaintiffs Olivia and Lander.

https://www.eenews.net/articles/meet-the-kids-behind-the-historic-montana-climate-trial/

https://www.eenews.net/articles/montanas-pro-environment-constitution-goes-on-trial/

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4 23 email drilled

on Monday this week the Supreme Court finally weighed in on whether it would take up the jurisdictional argument that oil companies are making in multiple climate liability suits. The companies have been arguing for the past five years that these cases, brought on behalf of municipalities and states, are asking state courts for judgements that would impact federal policy and thus belong in state court. Attorneys representing state and local arguments have argued that their cases—which claim that oil companies' delay tactics on climate increased the cost of adaptation and thus the companies are liable for a portion of those costs—were appropriately filed in state court. Every circuit court has agreed, as has the Department of Justice, and now the Supreme Court as well.

"The companies' history of climate, deception, and misinformation, coupled with their unchecked fossil fuel production promotion, and so on, it makes them liable for at least some of the costs that these communities face, so that these costs don't fall entirely on the taxpayers." — Marco Simons, EarthRights International, attorney representing Boulder and other Colorado municipalities against oil companies.

Suncor, a Canadian company whose U.S. subsidiary is headquartered in Colorado, is a defendant in the Boulder climate case.

It's big news, but what will it mean for these cases? Some of them, including Boulder, which was the case invoked in the initial petition to the Supreme Court, will go back to arguing against other motion-to-dismiss arguments in state court. But others, starting with Hawaii, will move towards trial and that's a really big deal because it means some of these cases will get into the phase of litigation oil companies have been trying their hardest to avoid: discovery. In civil cases, the discovery phase is when companies will be asked to hand over documents and make their executives available for depositions. The evidence gathered during discovery in these cases could spell trouble for the oil company defendants in multiple other cases, including ongoing fraud suits in Massachusetts and Minnesota, a RICO, or racketeering, case filed on behalf of Puerto Rican municipalities, and even international cases given that the majority of these companies operate globally.

"At this point, we're optimistic about moving forward and securing justice for our clients, who have been facing significant harms and costs due to the climate crisis while the oil companies, of course, continue to profit from their deception and misinformation." —Marco Simons, EarthRights International

[audio]

But of course, oil majors have not put all their eggs in the jurisdictional basket. As I've been writing about for years now, one of the key arguments they're making in these cases is a First Amendment argument. In broad strokes, the argument goes like this: anything they've ever said about climate was in the interest of shaping policy, which makes it political speech (or "petitioning speech" in legalese), and therefore protected. It was clear this was going to be the driving force of these cases when the oil company defendants appointed Chevron's attorney, Ted Boutrous with Gibson Dunn, as their spokesperson across the board. Boutrous is a renowned First Amendment attorney, and Gibson Dunn is the firm that brought and won the most famous corporate free speech in the country's history: Citizens United. And now, even as the broader jurisdictional argument seems to be dead in the water, oil companies have formulated another one: the First Amendment question in these cases is foundational, and is not something that state courts should be weighing in on.

That argument has already been briefed in multiple cases, and it's only a matter of time before it makes its way to the most pro-corporate Supreme Court this country has had in decades...maybe ever. In the meantime, cases will move forward, and it's possible that so many cases moving into discovery will prompt discussion of a tobacco-style settlement. But I wouldn't go counting those chickens just yet.

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something coming in fall?

yahoo 4 23

“These 14 youth are making history. For the first time ever on our planet, these young people in Hawaiʻi are holding their state transportation department accountable for its actions that worsen the climate crisis and violate the youth’s constitutional rights. Trial in Navahine F. v. Hawaiʻ i Department of Transportation is a huge step toward achieving climate justice for these 14 young climate leaders and all young people across the Islands as well as advancing protection of the rights of children and youth in other jurisdictions across the U.S. and around the globe.”

- Andrea Rodgers, Senior Litigation Attorney, Our Children’s Trust and co-counsel for the youth plaintiffs

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yahoo 3 23

front p nyt? 3/29

badge, left, and Lander Busse, teenage plaintiffs in a lawsuit against the state of Montana saying it violates the state Constitution that guarantees ‘the right to a clean and healthful environment.’” Photo Credit: Matthew Hamon for The New York Times

:{:{“A lot of this is just rooted in how many Montanans, including us, live life on an everyday basis, and how ingrained the wildlife and the land and the nature is in who we are.”}: – Lander Busse, one of 16 young Montanans who have sued their state.

“There have been almost no trials on climate change. This is the first that will get into the merits of climate change and what needs to be done, and how the state may have to change its policies.” – Michael Gerrard, director, Sabin Center for Climate Change Law, Columbia Law School.

“In the courtroom, the truth still matters.” – Nate Bellinger, lead Montana attorney at Our Children’s Trust.}:

Thunberg joins 630+ youth activists in climate lawsuit against Sweden

Published on November 26th, 2022 | by Julia Conley

Climate leader Greta Thunberg was among 636 young adults and children who submitted a class-action lawsuit against the Swedish government at a district court in Stockholm on Friday, arguing that the country’s right-wing leaders are failing to obey the Swedish constitution as they continue allowing planet-heating fossil fuel extraction. By Julia Conley Common Dreams About 2,000 […]

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This week, the legal team at Our Children’s Trust submitted three filings with the United States District Court of Oregon in support of Juliana v. United States regarding the Supreme Court’s recent rulings in Dobbs v. Jackson Women’s Health Org, West Virginia v. EPA, and New York State Rifle & Pistol Assoc. v. Bruen. These notices inform Judge Ann Aiken, who we anticipate will rule on our motion to amend the Juliana case any day now, about how these new Supreme Court precedents support the Julianayouth plaintiffs’ arguments that they are entitled to have their constitutional claims heard at trial.

While we do not agree with the Supreme Court’s majority opinions in these cases - and condemn the harm they have on human rights in America - these rulings do support advancing Juliana toward trial.

Rulings Can Be Wrong But Precedent is Critical

It may be surprising to see our legal team, which is actively defending and protecting human rights, cite these three cases in support of our litigation. But it’s absolutely necessary to use this precedent in our favor, as well as to call out the hypocrisy in the Court’s opinions, even while our legal community works hard to reverse those legal wrongs. These precedents are binding on our lower courts and must be considered in cases like Juliana.

In short, the majority opinions in Dobbs, West Virginia, andBruen were wrong, but aspects of these Supreme Court opinions reinforce our claims and standing in Juliana.

Dobbs v. Jackson Women’s Health Org is a ruling that Our Children’s Trust condemns as an unlawful reversal of 50 years of constitutional protection of privacy, bodily autonomy, and reproductive rights. But in Dobbs,the Supreme Court has simultaneously reinforced that federal courts do indeed have the authority and duty to declare or deny the existence of fundamental rights.

“Dobbs stands for a dismantling of privacy and bodily autonomy rights that are critical for people across the nation, and we stand firmly with those who seek to right that constitutional injustice by our highest court. But Dobbs also stands for the rule that whether a right is constitutionally protected is up to our courts to decide and declaratory judgment is the appropriate remedy in a controversy over rights. In Juliana, the courts similarly have a duty to declare whether the young plaintiffs’ rights are constitutionally protected and are being violated by their government. Here, too, life is at stake, something the Supreme Court purports to claim as deserving of special consideration.”- Julia Olson, lead counsel in Juliana v. U.S.

Similarly, while we disagree with the Supreme Court’s ultimate holding in West Virginia, the Chief Justice did reinforce EPA’s responsibility for controlling national air pollution and setting national standards, something we have long advocated for. The Supreme Court also ruled that EPA can’t act outside of its authority that Congress has given it. Well, folks, that is precisely what we have been arguing for seven years in Juliana.EPA has well exceeded its authority by allowing dangerous amounts of greenhouse gas pollution into our air that destroys our climate system and harms the health of the youth plaintiffs. All of that fossil fuel pollution that is wreaking havoc? It’s permitted, licensed, approved, and allowed by your EPA. And a trial in Julianawill prove it.

Bruen, the case about Second Amendment gun rights, presents a similar situation: the Supreme Court majority ruled that Americans have a constitutional right to carry guns in public places in order to protect themselves from potential threat to life and limb, even from unforeseeable risks and absent any evidence of immediate harm. But in Juliana, the 21 youth plaintiffs are not presenting an idea of hypothetical danger, but rather are prepared to present to the court the very real evidence of ongoing injury, perpetuated by their own federal government, that is damaging their health, threatening their safety, and endangering their lives, right now.

Since the Supreme Court has ruled these things to be true in Dobbs, West Virginia, and Bruen - that our courts have the authority to declare or deny constitutional rights, that declaratory judgment is indeed a substantial remedy, that the EPA is responsible for regulating air pollution, that courts look at human life specially, and that we have a right to defend our lives from threats to our safety - then the same must hold true for the youth in Juliana v. United States.

10/22

HUGE NEWS: Our attorneys have secured new trial dates for our youth-led constitutional climate case Held v. State of Montana.

This will be the first ever constitutional climate trial in U.S. history. It is now scheduled to take place in Helena, MT from June 12-23, 2023!

https://www.youthvgov.org/held-v-montana

A Landmark Case

On March 13, 2020, 16 young people from across the state of Montana filed their constitutional climate lawsuit, :{**Held v. State of Montana**:(style="overflow-wrap:break-word"):}:, against the state of Montana, asserting that, by supporting a fossil fuel-driven energy system, which is contributing to the climate crisis, Montana is violating their constitutional rights to a clean and healthful environment; to seek safety, health, and happiness; and to individual dignity and equal protection of the law. The youth plaintiffs also argue that the state’s fossil fuel energy system is degrading and depleting Montana’s constitutionally protected public trust resources, including the atmosphere, rivers and lakes, and fish and wildlife.

On August 4, 2021 , in a historic decision, Judge Kathy Seeley ruled that the youth plaintiffs could proceed to trial. Scheduled for February 6-17, 2023, Held v. State of Montana will be the first ever children’s climate trial in U.S. history!

The youth plaintiffs are represented by Nate Bellinger with Our Children’s Trust, Melissa Hornbein with Western Environmental Law Center, and Roger Sullivan and Dustin Leftridge with McGarvey Law.

https://www.youthvgov.org/our-case

21 American youth filed aconstitutional climate lawsuit, called Juliana v. United States, against the U.S. government in the U.S. District Court for the District of Oregon in 2015.

The youth plaintiffs’ complaint asserts that, through the government's affirmative actions that cause climate change, it has violated the youngest generation’s constitutional rights to life, liberty, and property, as well as failed to protect essential public trust resources.

CURRENT STATUS: The Juliana v. United Statesyouth plaintiffs are currently awaiting a ruling from U.S. District Judge Ann Aiken on a motion to amend their case, a decision which could set them back on the path to trial.

A HISTORY OF THE CASE

The fossil fuel industry initially intervened in the case as defendants, joining the U.S. government in trying to have the case dismissed. In April 2016, U.S. Magistrate Judge Thomas Coffin recommended denialof both of motions to dismiss. U.S. District Court Judge Ann Aiken upheld Judge Coffin's recommendation, with the issuance of an historic November 10, 2016 opinion and order denying the motions. When the defendants sought an interlocutory appeal of that order, Judge Aiken denied their motions in June 2017.

In June 2017, Judge Coffin issued an orderreleasing the fossil fuel industry defendants from the case, and setting a trial date for February 5, 2018 before Judge Aiken at the U.S. District Court of Oregon in Eugene.

In July 2017, the Ninth Circuit Court of Appeals requested that attorneys for the youth plaintiffs submit a response to the government's**petition for "writ of mandamus**" and invited the District Court to respond as well. The District Court responded via letter and the youth filed their answer. Further, eight amicus briefswere filed with the Ninth Circuit in support of the case.

Pursuant to its order, a three judge panel of the Ninth Circuit, made up of Chief Justice Sidney Thomas, and Circuit Justices Alex Kozinski and Marsha Barzon heard oral arguments on December 11, 2017. Eric Grant, representing the Trump administration and the U.S. government, argued that the case be dismissed. Justice Kozinski subsequently resigned and was replaced on the panel by Circuit Justice Michelle Friedland.

Due to the Trump administration’s drastic tactics [emergency stay scotus?] before the Ninth Circuit Court of Appeals to silence the voices of youth and keep science out of the courtroom, the trial did not begin on February 5th, as originally scheduled.

On March 7, 2018 the Ninth Circuit Court of Appeals rejected the Trump administration’s “drastic and extraordinary” petition for writ of mandamus. During a public case management conference on April 12, 2018, U.S. Magistrate Judge Thomas Coffin set **October 29, 2018** as the start date for the trial!

On May 25, 2018, U.S. Magistrate Judge Thomas Coffin issued anorder denying the Trump Administration’s motion for protective order and a stay of all discovery.

On July 18, 2018, U.S. District Court Judge Ann Aiken heard the oral argument in the case. Judge Aiken considered the Trump administration’s latest procedural tactics to avoid trial: a motion for judgment on the pleadings (“MJP”) and a motion for summary judgment (“MSJ”). Supporters of the youth plaintiffs packed the Wayne Morse Federal Courthouse in Eugene and three overflow rooms!

On July 20, 2018, in a per curiam opinion, Chief Judge Sidney R. Thomas, and Circuit Judges Marsha Berzon and Michelle Friedland of the Ninth Circuit Court of Appeals rejected the Trump administration’s second petition for writ of mandamus

On July 30, 2018, the U.S. Supreme Court unanimously ruled in favor of the youth plaintiffs! The Court denied the Trump administration’s application for stay, preserving the U.S. District Court’s trial start date of October 29, 2018. The Court also denied the government’s “premature” request to review the case before the district court hears all of the facts that support the youths’ claims at trial.

In October, 2018, the Trump administration filed :{**another**:(style="overflow-wrap:break-word"):}: motion with the U.S. District Court for the District of Oregon to stay discovery and a third writ of mandamus petition with the Ninth Circuit Court of Appeals. U.S. District Court Judge Ann Aiken ruled on the Trump administration’s motion for judgment on the pleadings (“MJP”) and motion for summary judgment (“MSJ”), which were filed earlier this year. Judge Aiken denied the motions brought by the Trump administration, but granted the motions in part by limiting the scope of the youths’ claims and dismissing the President from the case.

On October 18, 2018, the Trump administration filed a second writ of mandamus petition and application for stay with the U.S. Supreme Court, asking it to circumvent the ordinary procedures of federal litigation and stop the case. On October 19, 2018, the U.S. Supreme Court ordered a temporary, administrative stay while it considers the federal government’s petition and asked the youth plaintiffs’ attorneys to respond to it. On October 22, 2018, attorneys for the youth filed their response, requesting that the Court allow their trial to proceed on October 29 and pointing to numerous mischaracterizations of the lawsuit by the Trump administration in its recent filing with the Court.

On October 29, thousands rallied at courthouses around the country to support the Juliana youths’ right to be heard at trial!

On November 2, 2018 the United States Supreme Court denied the Trump administration’s application for stay.

On November 5, the Department of Justice filed a motion for stay with the U.S. District Court for the District of Oregon and, hours later, filed an application for stay and another petition for a writ of mandamus with the Ninth Circuit Court of Appeals. On November 8, a panel of the Ninth Circuit Court of Appeals granted, in part, the Trump administration’s motion for a temporary stay of District Court proceedings. The Court only placed a stay on trial, so trial preparations continued.

On November 21, 2018 U.S. District Court Judge Ann Aiken issued anorder certifying the case for interlocutory appeal to the Ninth Circuit Court of Appeals. On December 5, 2018, attorneys for the youth filed a motion for reconsideration with the U.S. District Court for the District of Oregon. The motion asked Judge Aiken to reconsider her November 21 decision to place a stay on pretrial proceedings. On December 10, the youths’ attorneys filed their answer in opposition to the fifth petition of the Trump administration to the Ninth Circuit Court of Appeals and on December 20 filed an emergency motion with the Ninth Circuit Court asking it to lift the stay imposed by its order of November 8, 2018 and allow the case to proceed to trial. On December 26, the Ninth Circuit Court of Appeals granted defendants’ petition for permission to bring an interlocutory appeal. On January 7, 2019 the Ninth Circuit Court of Appeals granted the youths’ request to expedite the briefing schedule, agreeing to fast-track the appeal.

On February 8, 2019, the youth plaintiffs sought a court order preventing the federal government from issuing leases and mining permits for extracting coal on federal public lands, leases for offshore oil and gas exploration and extraction activities, and federal approvals for new fossil fuel infrastructure. To obtain the order, attorneys for the young plaintiffs filed what’s called a motion for a preliminary injunction with the Ninth Circuit Court of Appeals while the government’s early appeal of the case is being heard.

On February 19, 2019 Zero Hour, a youth-led climate group, launched the website www.joinjuliana.org and announced its nationwide campaign to help thousands of young people add their names to the Young People’s amicus (“friend of the court”) brief in support of the youth and their case.

On March 1, 2019 powerful voices of support for the youths’ case filed amicus curiae (“friend of the court”) briefs with the Ninth Circuit Court of Appeals. In all, 15 amicus briefs, filed on behalf of a diverse set of supportive communities, including members of U.S. Congress, legal scholars, religious and women’s groups, businesses, historians, medical doctors, international lawyers, environmentalists, and more than 32,000 youth under the age of 25, displayed legal support for the case to proceed to trial. On March 24, the Ninth Circuit Court of Appeals set a hearing date for June 4, 2019 to hear oral arguments in Portland, Oregon, on the interlocutory appeal and the preliminary injunction.

At the hearing on June 4, 2019, Julia Olson argued on the youth plaintiffs’ behalf and Assistant Attorney General Jeffrey Clark argued on behalf of the federal government before Judges Mary H. Murguia and Andrew D. Hurwitz of the Ninth Circuit Court of Appeals, and Josephine L. Staton of District Court for the Central District of California.

On January 17, 2020, a divided Ninth Circuit Court issued an order on the interlocutory appeal. In their ruling, the Court recognized the gravity of the evidence on the youths’ injuries from climate change and the government’s role in causing them. Yet, while it found the government is violating our constitutional rights, two of the three judges said that addressing our requested remedies should be addressed by the executive and legislative branches. The third judge affirmed our constitutional climate rights, writing "our nation is crumbling - at our governments' own hand - into a wasteland."

On March 2, 2020, attorneys for the youth filed a petition for rehearing en banc with the Ninth Circuit Court of Appeals. This petition asks the full Ninth Circuit Court of Appeals to convene a new panel of 11 circuit court judges to review January's sharply divided opinion.

On March 12, 2020,24 members of the United States Congress, prominent experts in the fields of constitutional law, climate change, and public health, and several leading women’s, children’s, environmental, and human rights organizations filed 10 *amicus curiae* (friend of the court) briefs with the Ninth Circuit Court of Appeals in support of the youths’ case. The briefs urge the Ninth Circuit Court of Appeals to grant the plaintiffs’ en bancpetition and convene a new panel of 11 circuit court judges to review January’s ruling.

On February 10, 2021, the Ninth Circuit failed to correct the legal errors in March 2020’s panel decision and upheld the panel’s ruling. A judge requested a vote on whether to rehear the case, but a majority of judges declined to do so. Attorneys and the youth plaintiffs are planning to take their case to the U.S. Supreme Court. They have also asked the Biden-Harris DOJ to meet to discuss settlement options to protect the youths’ fundamental rights.

On March 9, 2021, attorneys for the youth plaintiffs filed a motion to amend their complaint against the federal government and adjust the remedy sought in their case in response to the February 2021 and January 2020 Ninth Circuit rulings.

On May 13, 2021, U.S. District Court Judge Ann Aiken ordered attorneys for the youth plaintiffs and attorneys with the Department of Justice to convene for a settlement conference with Magistrate Judge Thomas M. Coffin. The court also scheduled oral argument on the youth plaintiffs’ Motion for Leave to File Second Amended Complaint. The hearing on that motion will be held telephonically on Friday, June 25, 2021 at 10 a.m. PDT.

On June 8, 2021,attorneys General in 17 states filed a motion to intervene to insert themselves as adversariesto the Julianalawsuit and object to any potential settlement between the Biden Administration and the youth plaintiffs. Because they have indicated they won’t participate in the settlement process in good faith, the youth plaintiffs and their attorneys will object to these state governments intervening at this late stage in their case.

[ALABAMA, ALASKA, ARKANSAS, GEORGIA, INDIANA, LOUISIANA, MISSISSIPPI, MISSOURI, MONTANA, NEBRASKA, NORTH DAKOTA, OHIO, OKLAHOMA, SOUTH CAROLINA, TEXAS, UTAH, AND WEST VIRGINIA.]

On June 25, 2021, attorneys for the youth plaintiffs and the Department of Justice present oral arguments in front of U.S. District Court Judge Ann Aiken on the plaintiffs’ Motion for Leave to File Second Amended Complaint.

On July 7, 2021, attorneys General in New York, Delaware, Hawai‘i, Minnesota, Oregon, and Vermont, as well as environmental organization NRDC, file amicus briefs in support of the youth plaintiffs. Attorneys for the youth plaintiffs also file a brief opposing the intervention motion of18 Republican states who seek to obstruct settlement negotiations and get the case dismissed.

On November 1, 2021, Settlement talks between the Juliana youth, their attorneys, and the Department of Justice, ended without resolution after five months.

TODAY: The youth plaintiffs are currently awaiting a ruling from U.S. District Judge Ann Aiken on a motion to amend their case, a decision which could set them back on the path to trial.

A Hypothetical Win for Juliana Plaintiffs: Ensuring Victory Is ...https://www.ecologylawquarterly.org › 2020/04 › 1...PDF

by IMT Symbolic · 2019 · Cited by 2 — In June, the district court granted the intervenors motion to withdraw. Order Granting Intervenors' Motion to. Withdraw, Juliana v. United ...

12 pages

legal art'l

https://www.ecologylawquarterly.org/wp-content/uploads/2020/04/17_46.2_Raymond_Final.pdf

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ECOLOGY LAW QUARTERLY [Vol. 46:705 II. OVERVIEW OF JULIANA A.

Relief Sought by Plaintiffs

Given the executive and legislative branches’ inaction on climate change, the Juliana plaintiffs seek relief from the violation of their constitutional and common law rights.23 Instead of focusing on violations under a specific federal statute, such as the CAA, Clean Water Act, Comprehensive Environmental Response, Compensation, and Liability Act, or the National Environmental Protection Act (NEPA), they assert that the federal government has not “take[n] obvious steps to address” and ameliorate the known, serious risk of climate change to which they have exposed plaintiffs.24

The Juliana plaintiffs argue that the due process clause of the Fifth Amendment, the equal protection clause of the Fifth and Fourteenth Amendments, and the Ninth Amendment include the right to a livable climate system and healthy environment.25 Additionally, plaintiffs seek recognition of an expanded federal public trust doctrine to include atmospheric protection. 26 Granting such relief would require the court to recognize a federal, as opposed to state, public trust doctrine that would protect resources within the public trust from government interference.27 The plaintiffs also seek a declaration that the federal public trust extends beyond waterways and coastal lands—the traditional scope of state public trust doctrine—to include the atmosphere.28 In addition to declaration of these rights and an injunction from further rights violations, plaintiffs most notably seek development and implementation of “a national remedial plan to phase out fossil fuel emissions and draw down

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excess atmospheric carbon dioxide so as to stabilize the climate system and protect the vital resources on which Plaintiffs now and in the future will depend.”29 The government has focused its opposition on this proposed remedy, arguing that “the Plaintiffs have not even begun to articulate a remedy within a federal court’s authority to award that could meaningfully address the complex phenomenon of global climate change, much less likely redress their alleged injuries.”30 The government pointed out that a district court order to the federal government to implement such a plan would “essentially plac[e] a single district court in Oregon . . . in charge of directing American energy and environmental policy,” in a “unprecedented usurpation” of an Article III court’s authority.31 While Judge Aiken, the district court judge presiding over the case, recognized that the court would have to “exercise great care to avoid separation-of-powers problems in crafting a remedy” if the plaintiffs prevail, she disagreed that such a remedy would be categorically beyond the authority of the court.32 B. Procedural History On August 12, 2015, the Youth Plaintiffs, Earth Guardians, and Dr. James Hansen filed their complaint against the United States, then President Barack Obama, and eight federal agencies. After the fossil fuel industry intervened on behalf of the defendants, the federal government filed a motion to dismiss.33 A magistrate judge denied the motions, and Judge Aiken upheld the recommendation in November 2016.34 Since then, multiple motions by the government to dismiss and delay the case have ping-ponged the case between the district, appellate, and U.S. Supreme Court.35 While numerous trial dates were set—originally for February and then October 2018—Judge Aiken ultimately certified the case for an interlocutory appeal to the Ninth Circuit before trial to resolve whether the claim involves a nonjusticiable political question.36 The plaintiffs face serious challenges to their standing and to...

p714

The district court could consider retaining jurisdiction to monitor progress and quickly resolve any uncertainty regarding the adequacy of plans and implementation. Some climate change advocates might hope the Court takes an active role in delineating the duties of agencies. However, the court has suggested its role would be limited, out of respect for separation of powers concerns, in “specify[ing] precisely” how defendants should ameliorate plaintiffs’ concerns.68 Additionally, it is beyond the court’s expertise and administrative capacity to direct numerous agencies in addressing the complex regulatory problem of CO2 emissions.69 But retaining jurisdiction to review agency responses to a court order would allow the Juliana court to “strike[] the appropriate balance” between deference to agencies and recognizing the court’s own duty to protect the plaintiffs’ constitutional rights.70

The court could adopt a similar balancing approach in setting deadlines and milestones to ensure compliance in remedial plan implementation. The court would likely hear very different timeline proposals from the plaintiffs and the government. While the court should respect agency estimates of the time needed to comply with a court order, it must take into account the urgent need for the plaintiffs’ remedy in combating climate change.71 Accordingly, while the court is likely to set a schedule between the two proposals, it should consider setting a more aggressive schedule given the context of climate change. Finally, the Court should not rule out issuance of contempt orders for agency failures. While a contempt order may not result in monetary sanctions, governmental agencies are responsive to public assessments of their performance, and the shame of being held in contempt has been shown to aid in compliance. 72 Furthermore, a court order may be useful in signaling to Congress when “delays have become unreasonable” and Congress should consider applying its sanctions.73

CONCLUSION

Each day the Juliana case survives in the federal court system is a win for climate activists, including the Youth Plaintiffs. Media coverage of the suit’s progress is elevating the voices of youth as a powerful force in the political process. Judge Aiken declared “the right to a climate system capable of

sustaining human life is fundamental to a free and ordered society.” Even if the appellate court denies that such a right exists, the decisions and the reasoning supporting it would provide useful information for future litigation strategies.74

If the case makes it to trial, the federal government would for the first time be required to litigate its policy history and preferences and have them judged not by politics but against scientific evidence.75 The trial could be a singular opportunity to “demonstrate culpability by the federal government and major fossil fuel producers” for climate change, “thereby paving a way for an effective climate policy in the United States.”76

But if the plaintiffs ultimately succeed, it will be imperative that the judge implements the remedy through a realistic, ambitious, and forceful order. If the remedy is granted, enactment will take time, coordination among numerous agencies, a watchful court, and perhaps, the threat of contempt as well as public condemnation. Given constitutional and political constraints on judges in overseeing agency action, even strong judicial oversight is likely to produce relief that is frustrating, bumpy, and slow.

Perhaps, by the time the Juliana plaintiffs succeed, the makeup of the executive and congressional branches will be more sympathetic to their cause and committed to playing an active role in climate change mitigation.But given the current gridlock of the political branches, an involved and assertive court may offer the best hope for beginning to build the climate system future generations deserve.Megan Raymond

very long table/chart of all the cases?

http://climatecasechart.com/case/juliana-v-united-states/

https://www.nytimes.com/2020/01/17/climate/juliana-climate-case.html

Court Quashes Youth Climate Change Case Against Government

Kelsey Juliana, a lead plaintiff in the climate change lawsuit against the federal government, at the Supreme Court in September.

By John Schwartz

Mr. Schwartz, a climate reporter, holds a law degree from the University of Texas.

Jan. 17, 2020

A federal appeals court has thrown out the landmark climate change lawsuit brought on behalf of young people against the federal government.

While the young plaintiffs “have made a compelling case that action is needed,” wrote Judge Andrew D. Hurwitz in a 32-page opinion, climate change is not an issue for the courts. “Reluctantly, we conclude that such relief is beyond our constitutional power. Rather, the plaintiffs’ impressive case for redress must be presented to the political branches of government.”

The two members in the majority of the three-judge panel thus agreed with the Trump administration that the issues brought up in the case, Juliana v. United States did not belong before the courts.

The appeals court decision reverses an earlier ruling by a district court judge, Ann Aiken, that would have let the case go forward. Instead, the appeals court gave instructions to the lower court to dismiss the case.

In a lengthy and impassioned dissent, Judge Josephine L. Staton wrote that “the government accepts as fact that the United States has reached a tipping point crying out for a concerted response — yet presses ahead toward calamity. It is as if an asteroid were barreling toward Earth and the government decided to shut down our only defenses.”

The third judge on the panel was Mary H. Murguia. All three were appointed to their current positions by President Barack Obama.

In a statement, Assistant Attorney General Jeffrey Bossert Clark of the Justice Department’s environment and natural resources division said the government was “pleased with the outcome.”Citing the portion of the Constitution that defines the role of the federal courts, he said, “this suit fell squarely outside the parameters of Article 3.”

In an interview, the lead lawyer for the plaintiffs, Julia Olson, said she would appeal the ruling. The next step sends the case to the full Ninth Circuit for reconsideration and what is known as an en banc hearing. The case, she said, is “far from over.”

Ms. Olson, an environmental lawyer with the group Our Children’s Trust, originally filed the federal suit in 2015 against the Obama administration, demanding both that the government drop policies that encouraged fossil fuel use and take faster action to curb climate change from a president already seen as friendly to environmental interests.

Working under a legal principle known as thepublic trust doctrine, which can be used to compel the government to preserve natural resources for public use, the initial complaint stated that government officials had “willfully ignored” the dangers of burning fossil fuels.

The five years since the case was first filed have been the five hottest years in the age of accurate records.

The 21 young plaintiffs, now between the ages of 12 and 23, claim that the government’s actions, and inaction, in the face of global warming violate their “fundamental constitutional rights to freedom from deprivation of life, liberty, and property.” Their personal stories include damage from rising sea levels and wildfire smoke, but they argued that they will be dealing with even more disastrous effects of climate change within their lifetimes.

The youngest of the plaintiffs, Levi Draheim, will be just 33 in 2040, the year by which a United Nations scientific panel now expects some of the biggest crises to unfold.

During the hearing in June that led to the new opinion, Judge Hurwitz pressed Ms. Olson with a question that signaled his skepticism about the courts taking the leading role in combating as big a problem as climate change: “You’re asking us to do a lot of new stuff, aren’t you?”

Ann Carlson, an expert in climate change law at the University of California Los Angeles School of Law, said what surprised her and many other experts was how far the lawsuit had proceeded.

[Understand the Latest News on Climate Change

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An investment in clean energy. The billionaire Michael R. Bloomberg announced a $242 million effort to promote clean energy in developing countries. The money will fund programs in Bangladesh, Brazil, Colombia, Kenya, Mozambique, Nigeria, Pakistan, South Africa, Turkey and Vietnam.

Hurricanes and air pollution. A new study found that particulate air pollution has a significant effect on the frequency of hurricanes. Over the past four decades, the decline in air pollution in North America and Europe was associated with a rise in the number of hurricanes; increasing pollution from growing economies had the opposite effect.

Oil field sales. Many of the world’s largest energy companies are expected to sell off more than $100 billion of oil fields and other polluting assets in an effort to cut their emissions. But a new study found that these deals often involve buyers that have made few or no pledges to combat climate change.

Warming oceans. A new study found that if fossil fuel emissions continue apace, warming waters could trigger ocean species loss by the year 2300 that is on par with the five mass extinctions in Earth’s past. But reining in emissions now could drastically reduce those extinction risks, researchers found.]

“I’ve always thought this case was creative and interesting but a long shot,” she said, “and after listening to the oral argument I thought that the court would find some way to dismiss the case that reflected its concerns about just how big the remedy was that the plaintiff were seeking in the case” — that is, she said, to “get the United States to stop emitting carbon into the atmosphere.”

She noted that even the majority opinion was very sympathetic to the arguments of the young people and accepted the need for action on climate change. “There really is a giant dilemma here about the lack of political will to address the problem, the lack of judicial comfort in stepping in to solve the problem,” she said.

The urgency of the climate crisis and the limitations of the law made the Juliana case a difficult one, said David M. Uhlmann, a law professor at the University of Michigan and former head of the environmental crimes section of the Justice Department.“If ever there were a case where your heart says yes but your mind says no,” he said, “Juliana unfortunately is that case.”

Ms. Olson, the lawyer for the young people, said the case did not require the kind of sweeping remedy the court described in the decision: “It doesn’t have to be the whole shebang.”

For her plaintiffs, she said, “the idea that their only recourse is to go to the very branches of government that are violating their rights when half of them can’t even vote is a preposterous notion.”

Michael B. Gerrard, the director of the Sabin Center for Climate Change Law at Columbia University, called the decision “a disappointment but not a surprise.” He said that “Many U.S. judges have vigorously enforced the environmental laws written by Congress but won’t go beyond that.”

“They want to leave the key decisions to the ballot box,” he said. “So for now, all three branches of the federal government are sitting on their hands as the planet burns.”

Biden win won't change :{Juliana's:(style="background:transparent;border:0px;margin:0px;outline:0px;padding:0px;vertical-align:baseline"):}: fate

Climatewire: Wednesday, November 18, 2020

Challengers involved in the landmark kids' climate case are unlikely to see a boost when Joe Biden takes over the White House next year, even as the president-elect appears poised to begin an administration that is more friendly to their cause.

SUPREME COURT

Juliana lawyers take page from LGBTQ rights ruling

Climatewire: Wednesday, June 24, 2020

A landmark Supreme Court decision on civil rights in the workplace has made its way into a major climate case.

COURTS

Feds urge 9th Circuit to keep kids' climate case dormant

Climatewire: Wednesday, March 25, 2020

Government lawyers yesterday urged a federal appeals court not to revive the landmark kids' climate case.

Experts throw support behind newest Juliana push

Climatewire: Friday, March 13, 2020

Law professors, environmental advocates and public health experts said yesterday that a federal appeals court got it wrong when it dismissed the so-called kids' climate case.

COURTS

Experts see risk in resuscitating Juliana case

Climatewire: Wednesday, March 4, 2020

A group of young people is trying to secure an appeals court win in its landmark "kids' climate case," but not everyone is convinced the move is a good one.

COURTS

Canadian kids cite 'serious harms' in federal climate case

Climatewire: Monday, October 28, 2019

A crop of young people last week targeted Canadian officials in the next legal battle to hold governments accountable for climate change.

LAW

Alaska Supreme Court hears another kids' climate case

Climatewire: Thursday, October 10, 2019

Justice Daniel Winfree of the Alaska Supreme Court said it's "not often" the judges see such a packed house.

ADVOCACY

Thunberg frenzy hits rally for kids' climate case

Climatewire: Friday, September 20, 2019

Several of the plaintiffs in the so-called kids' climate case held a rally this week in front of the Supreme Court to boost support for their cause. But the sea of press at the event had one goal in mind: nab a picture of or a quote from Greta Thunberg.

COURTS

Ariz. man takes a page — several, actually — from Juliana

Climatewire: Tuesday, August 20, 2019

A lawsuit in Arizona claims the federal government is failing to provide a safe climate. If that seems familiar, it's because it is. The man who filed the suit lifted those words from a separate case that's attracted national attention.

COURTS

Kids don't slow down ahead of Juliana ruling

Climatewire: Tuesday, August 6, 2019

Two months after the latest round of oral arguments in the so-called kids' climate case, the 21 youth plaintiffs of Juliana v. United States are still rallying public support for their cause.

LAW

Science might help win climate cases. Here's how

Climatewire: Tuesday, July 23, 2019

Legal risks for the government and companies could grow as scientists improve their ability to link human-caused emissions to specific disasters.

Q&A

Meet 3 kids suing the government over climate

Climatewire: Thursday, June 13, 2019

Alex Loznak, 22, of Oregon and plaintiffs Vic Barrett, 20, of New York and Kiran Oommen, 22, of Oregon sat down with E&E News ahead of 9th Circuit oral arguments earlier this month to talk about their lives as plaintiffs going head-to-head with the government — all before their 25th birthdays.

COURTS

Juliana: 'A bridge too far'?

Climatewire: Monday, June 10, 2019

As a tough panel of appellate judges grappled with the latest phase of the kids' climate case last week in Portland, Ore., the views of another court across the country loomed large.

COURTS

Kids face off with feds in landmark climate case

Climatewire: Wednesday, June 5, 2019

PORTLAND, Ore. — Twenty-one young Americans have no right to a "safe climate" under the Constitution, the Trump administration argued in court yesterday, rejecting a key assertion by the kids who say the government should phase out the use of fossil fuels.

LAW

The kids of Juliana prep for big day in court

Climatewire: Tuesday, June 4, 2019

PORTLAND, Ore. — Alex Loznak walks into the restaurant of his hotel with a camera crew trailing closely behind — a fixture in the public life of the 21 youth plaintiffs of the kids' climate case.

COURTS

'All eyes of the world are on Juliana'

Climatewire: Friday, May 31, 2019

The 21 youth plaintiffs of Juliana v. United States are days away from another milestone in their climate case against the government, a hearing that will determine whether their case gets back on track for what they call "the trial of the century."

COURTS

Kids say Trump's order amplifies need for fossil fuel freeze

Climatewire: Wednesday, May 22, 2019

Two weeks ahead of oral arguments at the 9th U.S. Circuit Court of Appeals, plaintiffs in the landmark youth climate case doubled down on an expansive request for a moratorium on all federal fossil fuel permitting.

COURTS

'Green New Deal' crusaders back kids' climate case

Climatewire: Monday, March 4, 2019

The young activists pushing lawmakers for a "Green New Deal" are throwing their weight behind peers fighting climate change in the courtroom.

COURTS

5 things to watch in kids' climate case appeal

Climatewire: Wednesday, February 27, 2019

Government lawyers and a group of young plaintiffs are busy trading legal barbs in what could be the final stage of the so-called kids' climate case.

COURTS

Kids' bid to block fossil fuels would derail economy — feds

Climatewire: Thursday, February 21, 2019

[TRUMP DOJ?]Government lawyers say a recent attempt by young litigants to halt federally approved fossil fuel development would "throttle important government functions superintending broad swaths of the national economy."

COURTS

Kids make long-shot bid to stop fossil fuels

Climatewire: Friday, February 8, 2019

The kids and young adults involved in high-profile climate litigation against the U.S. government made an urgent request late last night for federal judges to suspend fossil fuel development.

COURTS

Kids haven't shown feds caused climate change — DOJ

Climatewire: Monday, February 4, 2019

The Trump administration is urging a federal appeals court to finally spike the "kids' climate case."

COURTS

Admin's top environment lawyer to argue kids' climate case

Climatewire: Wednesday, January 23, 2019

The Justice Department's environment division is trotting out its top political official to argue the government's appeal in the kids' climate case.

[[:{https://www.eenews.net:(style="margin:0px;padding:0px;border:0px;font-style:inherit;font-variant:inherit;font-weight:inherit;font-stretch:inherit;vertical-align:baseline;color:var(--theme-col-txt-url-domain)"):}::{ › articles › trumps-top-environment-lawyer-dont-chain-me-to-a-desk:(style="margin:0px;padding:0px;border:0px;font-style:inherit;font-variant:inherit;font-weight:inherit;font-stretch:inherit;vertical-align:baseline;color:var(--theme-col-txt-url-path)"):}:

:{Trump's top environment lawyer: Don't chain me to a desk:(style="margin:0px;padding:0px;border:0px;font-style:inherit;font-variant:inherit;font-weight:inherit;font-stretch:inherit;vertical-align:top;display:inline-block;max-width:100%;overflow:hidden;text-overflow:ellipsis;white-space:nowrap"):}:

Jeffrey Bossert Clark is as comfortable in the courtroom as he is behind his desk at Justice Department headquarters. The longtime litigator recently took the helm of DOJ's environment team ...

:{https://time.com:(style="margin:0px;padding:0px;border:0px;font-style:inherit;font-variant:inherit;font-weight:inherit;font-stretch:inherit;vertical-align:baseline;color:var(--theme-col-txt-url-domain)"):}::{ › 5767438 › climate-lawsuit-kids:(style="margin:0px;padding:0px;border:0px;font-style:inherit;font-variant:inherit;font-weight:inherit;font-stretch:inherit;vertical-align:baseline;color:var(--theme-col-txt-url-path)"):}:

:{The Kids Climate Lawsuit Was Dismissed. Here's What it May Mean - Time:(style="margin:0px;padding:0px;border:0px;font-style:inherit;font-variant:inherit;font-weight:inherit;font-stretch:inherit;vertical-align:top;display:inline-block;max-width:100%;overflow:hidden;text-overflow:ellipsis;white-space:nowrap"):}:

As Jennifer Rushlow, the director of the Environmental Law Center at Vermont Law School, explains, the court threw out the case on the finding of "redressability," basically meaning they didn't...]]

CLIMATE

Government challenge to kids' case moves forward

Greenwire: Thursday, December 27, 2018

The kids' climate case will take another detour.

COURTS

Climate trial halted as Trump admin seeks to bar witnesses

Climatewire: Monday, November 26, 2018

The Trump administration is seeking to thwart certain witnesses from testifying in support of young Americans suing the federal government in a landmark climate change lawsuit.

COURTS

DOJ backing climate science? Blame Obama, official says

Climatewire: Monday, November 19, 2018

A top Justice Department lawyer was quick to point to Obama administration officials Saturday when asked why the government hasn't challenged climate science in high-profile litigation brought by youth plaintiffs.

LAW

Government files more motions against kids' climate case

E&E News PM: Tuesday, November 6, 2018

The Trump administration is trying to freeze a federal climate lawsuit, arguing the plaintiffs in the case are seeking a right that does not exist. In court papers yesterday, the government urged a district court in Oregon, where the case was filed, and an appellate court to step in.

COURTS

Justices OK climate case, but kids have long way to go

Climatewire: Monday, November 5, 2018

The Supreme Court on Friday lifted the hold on a climate lawsuit brought by a group of young Americans against the federal government, ending the legal purgatory that the case had been stuck in for weeks.

COURTS

Kids rally as climate trial's fate remains murky

Climatewire: Tuesday, October 30, 2018

Kallan Benson, a 14-year-old climate activist from Maryland, stood in front of the Supreme Court yesterday and sang her version of the pop song "Happy" by Pharrell Williams.

COURTS

'Goodbye Washington.' Trial records paint 'chilling' picture

Climatewire: Friday, October 26, 2018

In the fall of 1969, White House aide Daniel Moynihan wrote his colleague John Ehrlichman, one of President Nixon's closest advisers, to explain climate change and why it was a problem.

SUPREME COURT

DOJ pushes for dismissal of kids' climate suit

E&E News PM: Wednesday, October 24, 2018

The Trump administration again urged the Supreme Court to dismiss a high-profile climate lawsuit filed by children and young adults, the latest in repeated government attempts to derail the case.

COURTS

Kids' climate trial might be dead. Here's what it means

Climatewire: Wednesday, October 24, 2018

There's been a flurry of activity in the lead-up to the trial in a landmark climate lawsuit brought by a group of young people against the federal government.

COURTS

Stay in kids' case a harbinger of more conservative rulings?

Climatewire: Monday, October 22, 2018

The Supreme Court late Friday stayed discovery and trial in a landmark climate change lawsuit, marking a temporary win for the Trump administration.

CLIMATE

Supreme Court pauses kids' case in win for Trump

Greenwire: October 19, 2018 at 7:49 PM

The Supreme Court today halted a federal climate change lawsuit brought by a group of young people, handing the Trump administration at least a temporary victory in its long-running bid to knock down the case.

LAW

Right to safe climate 'simply does not exist' — DOJ lawyer

E&E News PM: Friday, October 19, 2018

The kids and young adults seeking to hold the government accountable for climate change impacts have "no legal basis" for their case, the Trump administration's top environmental lawyer said today.

COURTS

1,000 sermons: Clergy invokes kids' case from the pulpit

Climatewire: Friday, October 19, 2018

Ministers of the United Church of Christ have a goal: 1,000 sermons about the importance of a landmark trial on climate change that starts in 10 days.

CLIMATE

Trump admin asks Supreme Court to halt kids' case

Greenwire: Thursday, October 18, 2018

The Trump administration asked the Supreme Court again today to hit the brakes on a high-profile lawsuit brought by a group of young people over climate change.

COURTS

DOJ seeks to limit scientists' testimony at climate trial

Climatewire: Tuesday, October 16, 2018

The Trump administration doesn't want the trial in a landmark lawsuit brought by a group of young Americans to become a climate change symposium.

CLIMATE

Court drops Trump from kids' case

Greenwire: Monday, October 15, 2018

A federal judge today agreed to dismiss President Trump from an ambitious climate lawsuit brought by a group of children and young adults, but the court rejected many of the government's latest efforts to sideline the case before an upcoming trial.

COURTS

DOJ experts downplay climate, health links

Climatewire: Monday, October 15, 2018

Doctors retained by the U.S. government will likely minimize connections between heat-trapping gases and medical ailments at an upcoming climate change trial, court records show.

CLIMATE

Justice Dept. petitions 9th Circuit on kids' case — again

E&E News PM: Friday, October 12, 2018

The Trump administration is urging a federal appeals court to stop a national climate change case from proceeding. It's the third time the Justice Department has asked the court to intervene.

COURTS

Govt. strategy in kids' climate case: Don't attack science

Climatewire: Friday, October 12, 2018

To fight off a lawsuit that claims people have a constitutional right to a safe climate, first blame factors other than warming for harming the plaintiffs. Then argue that the United States can't alone address climate change.

COURTS

Kavanaugh casts shadow over kids' climate case

Climatewire: Wednesday, October 10, 2018

The confirmation of Justice Brett Kavanaugh to the Supreme Court may have already had repercussions on a high-profile climate change lawsuit brought by a group of young Americans.

CLIMATE

Trump administration aims to sideline kids' trial

Greenwire: Monday, October 8, 2018

The Trump administration is again heading to the Supreme Court in an attempt to derail litigation from a group of kids and young adults concerned about inadequate government action on climate change.

COURTS

Kids' case tests 'Hail Mary' climate argument

Climatewire: Friday, October 5, 2018

Twenty-one young Americans will go to trial later this month to argue that the government has infringed on their constitutional right to a safe climate.

SUPREME COURT

In blow to Trump, justices won't halt kids' climate case

E&E News PM: Monday, July 30, 2018

The Supreme Court denied the Trump administration's long-shot bid today to halt a high-profile lawsuit brought by youth plaintiffs over the government's role in causing climate change.

CLIMATE

Trump wants Supreme Court to halt kids' suit

Greenwire: Wednesday, July 18, 2018

The Trump administration yesterday launched what plaintiffs described as a "last-ditch effort" to halt a lawsuit brought by kids over the government's role in causing climate change.

COURTS

High-profile climate trial to kick off this fall

Climatewire: Friday, April 13, 2018

The landmark climate lawsuit filed by kids and young adults against the U.S. government will begin in the fall, a judge said yesterday.

LAW

These kids envision looming climate havoc. So they're suing

Climatewire: Thursday, March 22, 2018

When Victoria Barrett, an 18-year-old freshman at the University of Wisconsin, Madison, is approaching middle age, the world stands to be hotter, more crowded and increasingly storm-battered.

LAW

Science goes to court. Does skepticism equal 'perjury'...https://www.eenews.net/special_reports/juliana_v_us/stories/1060067949...https://en.wikipedia.org/wiki/Juliana_v._United_States">https://en.wikipedia.org/wiki/Juliana_v._United_States

Juliana, et al. v. United States of America, et al. is a climate-related lawsuit filed in 2015 by 21 youth plaintiffs against the United States and several executive branch officials. The plaintiffs, represented by the non-profit organization Our Children's Trust, include Xiuhtezcatl Martinez, the members of Martinez's organizationEarth Guardians, and climatologist**James Hansen**as a "guardian for future generations". Some fossil fuel and industry groups intervened as defendants, but were later dropped at their request following the 2016 presidential election.

The lawsuit asserts that the United States government violated the plaintiffs' rights by encouraging and allowing activities relating to greenhouse gas emissions that significantly infringed upon their right to life and liberty. The case is an example of an area of environmental law referred to as "atmospheric trust litigation", a concept based on the public trust doctrine and international responsibility related to natural resources.

While similar past lawsuits have been dismissed by U.S. courts, Juliana v. United States gained attention in 2016 when U.S. District Court of Oregon Judge Ann Aikendeclined to dismiss it; Judge Aiken ruled that access to a clean environment was a fundamental right. In January 2020, a Ninth Circuit panel reversed Judge Aiken and dismissed the case on the grounds that the plaintiffs lacked standing to sue. Attorneys for the youth plaintiffs have appealed the dismissal.

Case history

Background

Legal actions to affect climate change by federal and state-level governments have been attempted since the 1990s; one of the first known cases was led by Antonio Oposa, a Philippine lawyer that represented a class-action suit of 43 students against the Philippine government to protect a forest surrounding their village. Oposa had won the suit, which led to numerous other lawsuits around the world.^[1] As of July 2018, there were over 1,000 such lawsuits filed across 24 countries, with 888 of those within the United States.^[2] Such cases typically involve youth and children and other future generations, as they help to broaden the appeal of the action, and represent the class that would be most affected by government action or inaction.^[1]

The Oregon non-profit organization, Our Children's Trust, was created by attorney Julia Olson to help formulate legal cases that could be taken against states and the federal government that would charge them with mitigating climate change under the public trust doctrine.^[3] Olson established the non-profit with advice and assistance from Mary Christina Wood, director of the Environmental and Natural Resources Law Program at the University of Oregon, who had been studying the concept of the public trust doctrine and established the idea of "Atmospheric Trust Litigation" to take legal action to make governments responsible for actions related to climate change.^[4][3]

Part of Our Children's Trust's inspiration was from Oposa's work in the Philippines.Since 2011, Our Children's Trust has been filing various state and federal lawsuits on behalf of youth, though most of these have been dismissed by courts, as courts generally have not ruled that access to a clean environment is a right that can be litigated against.^[5][2][3]

Such cases are also generally dismissed as lawsuits cannot be initiated by "generalized grievances", and require plaintiffs with standing to sue and can demonstrate concrete harm that the government has done, and that the courts can at least partially redress the harm by order of the court.^[6] Further, cases cannot be brought to court if they deal with a "**political question**" which cannot be resolved by actions of Congress and the President.^[6]

A few related cases on climate change have made it to the Supreme Court. The first, which opened the way for the others, was Massachusetts v. Environmental Protection Agency, 549 U.S. 497 (2007). In that suit, twelve states sued the Environmental Protection Agency (EPA) for failing to regulate emissions of greenhouse gases and sought relief. The Court agreed with the states by a 5–4 vote on each of three issues: that the states had standing to sue the EPA for not issuing regulations, that greenhouse gases were air pollutants, and that the EPA was authorized to regulate them.^[7].

The majority opinion stated that, while any regulation made by the EPA would be unlikely to stop global warming, the agency should be required to regulate such emissions to reduce the extent of global warming.^[6]

Subsequent cases were less successful. For example, an attempt to sue public utilities for greenhouse gas emissions under a "public nuisance" theory invoking the federal common law of nuisance was unanimously rejected by the Court in 2011in American Electric Power Co. v. Connecticut, 564 U.S. 410 (2011), reversing a lower court decision in a case that also found an evenly divided court with regard to standing (as Justice Sotomayor did not participate).^[8]

Also, a challenge to the EPA's subsequent regulations on greenhouse gases was upheld in part and denied in part in Utility Air Regulatory Group v. EPA, 573 U.S. _ (2014), a ruling which rejected the EPA's expansive reading of its powers by a 5–4 vote but permitted EPA to implement greenhouse gas regulation on existing monitored power plants by a 7–2 vote.^[9][10]

Initial hearings

The present case was filed in August 2015 with the United States District Court for the District of Oregon, and was assigned to judge Ann Aiken, who was then the chief judge of the court.^[11] The 21 youths, ranging from 8 to 19 at the time of filing, received pro bono representation from Our Children's Trust, and had support of climatologist James Hansen, acting as a "guardian for future generations" in the case filings.^[12][13] (Hansen's granddaughter Sophie Kivlehan was one of the named plaintiffs.)^[14] The youths were selected by Our Children's Trust as they all were able to demonstrate immediate "concrete injury" due to climate change, such as having their homes wiped out by excessive flooding, rising sea levels, and desertification which were tied to climate change.^[6]

The case was filed against President Barack Obama and several agencies within the executive branch, and sought confirmation that their constitutional and public trust rights had been violated by the government's actions, and sought an order to enjoin the defendants from continued violation of their rights and to develop a plan to mitigate carbon dioxide emissions.

Among their arguments, the youths' attorneys asserted that the lack of governmental action on climate change discriminated against the youths' generation, since they would be most impacted by climate change but have no voting rights to influence that.^[12]

Three fossil fuel industry groups, the American Petroleum Institute, American Fuel and Petrochemical Manufacturers, and the National Association of Manufacturers, initially intervened in the case as defendants, joining the U.S. government in trying to have the case dismissed.^[15][16] Pre-trial hearings were held in March 2016 before U.S. Magistrate Judge Thomas Coffin.

The U.S. Department of Justice argued that there was "no constitutional right to a pollution-free environment", and that the court system was not the proper venue to affect such changes.^[12] Coffin ruled in April 2016 recommending that both motions to dismiss were denied; Coffin found that while the case was "unprecedented", it had sufficient merit to continue.^[13]

Coffin's decision was upheld by Judge Aiken, who ruled in November 2016 that theright to "a climate system capable of sustaining human life" was a fundamental right similar to gay marriage as decided by the recent Supreme Court case, Obergefell v Hodges.^[17]

According to Michael Gerrard, the director of the Sabin Center for Climate Change Law at Columbia University, "this decision goes further than any other court ever has in declaring a fundamental obligation of government to prevent dangerous climate change",^[17] and Judge Aiken’s decision that there might be a constitutional right to a sound environment was the first such ruling ever from a federal court.^[18] Preliminary trial dates were set for 2017.^[17]

Following the 2016 election, the federal defendants filed a response to the plaintiff's complaint on January 13, 2017, one week before President Obama left office.^[19] In their response, thefederal defendants denied that they had caused climate change or specific climate change impacts such as increased temperatures, drought conditions, warmer water temperatures, rising sea levels, and ocean acidification.^[20]

About a month later, the complaint was amended to make the lead defendant newly-elected President Donald Trump.^[20] In the months that followed, thefossil fuel industry groups requested that they be removed from the case, believing that the Department of Justice under the Trump Administration would vigorously defend the case, unlike the Obama Administration.^[15] HMMN RATIONALE?

The National Association of Manufacturers, one of the fossil fuel groups, said that "as the dynamics have changed over the last several months, we no longer feel that our participation in this case is needed to safeguard industry and our workers".^[15][16] In late June 2017, Judge Coffin released the fossil fuel industry defendants from the case, as well as establishing a trial date on February 5, 2018 before Judge Aiken.^[21]

Government objections

In early June 2017, the Department of Justice filed a motion requesting that Judge Aiken rule on its prior motion for an interlocutory appeal to the Ninth Circuit of Judge Aiken's November 2016 decision on the justiciability of the plaintiffs' claims, by June 9 or the department would directly seek a writ of mandamus regarding the issue in the Ninth Circuit.^[22]

Judge Aiken denied the motion requesting the interlocutory appeal on June 8,^[23] leading the government to petition the Ninth Circuit for a writ of mandamus on June 11. The government's petition argued that the Ninth Circuit needed to act to correct "multiple and clear errors of law in refusing to dismiss an action that seeks wholesale changes in federal government policy based on utterly unprecedented legal theories".^[24] The government also argued that the pre-trial discovery phase would cause the government harm due to the volume of data and evidence they would need to provide.^[25]

After receiving responses from the plaintiffs, the Ninth Circuit opted in November 2017 to hear oral arguments before making their decision.^[25] These arguments were held on December 11, 2017 in front of Judges Sidney Thomas, Alex Kozinski, and Marsha Berzon. A few days later, Judge Kozinski stepped down from the Ninth Circuit.^[26] On December 21, 2017, Judge Michelle Friedland was appointed to replace Kozinski. Due to the Ninth Circuit's hearing, the planned trial date at District Court was put on hold.^[27] On March 7, 2018, the Ninth Circuit Court of Appeals unanimously rejected the requested writ of mandamus in a decision by Judge Thomas.^[28][29] The District Court trial was then rescheduled to start October 29, 2018.^[30]^

The government then petitioned the Supreme Court of the United States requesting a stay to delay the trial. On July 30, 2018, the Supreme Court issued a brief order, denying the government's request for a stay as premature but expressing skepticism about the lawsuit, as well as noting that the breadth of the plaintiffs' claims was "striking" and requesting that the District Court issue a prompt ruling on the government's motions challenging the overall justiciability of those claims.^[31][32]

Following the Supreme Court's order, the government again presented two motions to dismiss the case to Judge Aiken in July 2018. One motion stated that the case, in addressing multiple government agencies, violated the Administrative Procedure Act, while the other motion challenged the youths' standing in the case.^[33] While Judge Aiken said she would rule promptly on the motions, she had not issued her decision by October 5, causing the government again to request an emergency stay from the Ninth Circuitvia a second writ of mandamus, asking them to delay the case until Aiken ruled on the two motions.^[34] On October 15, Judge Aiken ruled on the two motions, denying both. Aiken also removed President Trump as a defendant in the case without prejudice, meaning that he could be re-added to the case at a later stage, and reaffirmed the trial start date of October 29.^[35]

In response, on October 18, 2018, the U.S. government submitted an emergency motion to the Supreme Court, again requesting to stay the trial.^[36][37] The government claimed that, "Absent relief from this court, the government imminently will be forced to participate in a 50-day trial that would violate bedrock requirements for agency decision making and judicial review imposed by the [Administrative Procedure Act] and the separation of powers."^[38][39]

Chief Justice John Robertsof the Supreme Court granted the stay the next day, pending receipt of a response to the government's brief from the plaintiffs.^[40][37][41] An environmental law professor at UCLA opined, with regard to this stay, "It's certainly a signal that the court is uncomfortable with the underlying legal theory of the Juliana case."^[14] On October 24, 2018, Judge Aiken filed an order vacating the trial start date of October 29 and placing a hold on the rest of the trial schedule.^[42]

On November 2, the Supreme Court (by a 7–2 vote) denied the government's request for a writ of mandamus and vacated the stay, holding that the government could still be granted pretrial relief from the Ninth Circuit.^[43][44] In its order, the court noted that, even though the Ninth Circuit had already denied the government's request for relief twice, the reasons supporting its denials on the prior occasions "are, to a large extent, no longer pertinent".^[45] The order was issued without prejudice, leaving open the possibility that the case could return to the Supreme Court again prior to trial, depending upon the actions taken by the Ninth Circuit.^[45]

Interlocutory appeal

On November 8, 2018, consistent with the Supreme Court's order of November 2, 2018, the Ninth Circuit granted an indefinite stay on the trial pending its ruling on the government's request for a writ of mandamus, as well as requesting briefs from both the plaintiffs and the trial court on the writ and requiring the trial court to rule on the government's renewed motion for an interlocutory appeal.^[46][47] On November 21, 2018, Judge Aiken reversed her position and granted the government's request for an interlocutory appeal, putting the entire case on hold until the higher courts have ruled on this appeal.^[48][49][50] On permission granted, the government filed a petition with the Ninth Circuit on November 30, 2018, for interlocutory review of the order on motions to dismiss and the order on motions for judgment on the pleadings and summary judgment. An answer was filed with the Court by the plaintiffs on December 10, 2018.^[51]

On December 26, 2018, the Ninth Circuit denied the requested writ of mandamus as moot but granted the interlocutory appeal by a 2–1 vote.^[52] Subsequently, as requested by plaintiffs, the Ninth Circuit set an expedited schedule for the appeal, requiring the government's opening appeal brief by February 1, 2019, the plaintiff's response brief by February 22, 2019, and all briefing to be completed by March 8, 2019.^[53] The government's appeal brief again challenged the unique constitutional and statutory rulings on standing, fundamental rights, and the public trust doctrine made by the district court.^[54]

On February 7, 2019, the plaintiffs filed an "extraordinary motion" asking the Ninth Circuit to issue a preliminary injunction by March 19, 2019, blocking the federal government from approving any fossil fuel production activities either on federal land or needing federal approval, such as coal mining on federal land, oil or natural gas drilling offshore, or pipelines that need federal approval.^[55][56].

In opposition, the federal government noted that the case was filed over 3.5 years before the plaintiff's initial request for an emergency injunction.^[57][58] Meanwhile, the plaintiffs argued in part that the appeal was improvidently granted and that the case should be returned to Judge Aiken.^[59] The Ninth Circuit scheduled oral argument on the appeal for the week of June 3, 2019 in Portland,^[60] and the appeal was ultimately heard on June 4 in front of a different three-judge panel from the Ninth Circuit consisting of Mary H. Murguia, Andrew D. Hurwitz, and Josephine Staton (sitting by designation), all of whom were appointed to the bench by**President Obama**.^[61]

Some legal experts believed that the interlocutory appeal "could (and, indeed, likely will) bring this litigation to an end" due to the Supreme Court's already-expressed skepticism.^[50] Other experts, such as the director of Columbia University's climate change center, noted that any decision in favor of the plaintiffs likely would be reversed by the Supreme Court, which has been reluctant to declare new rights and which unanimously held in American Electric Power Co. v. Connecticut that it was not for the courts to decide appropriate levels of pollution.^[18]

On January 17, 2020, on a 2–1 vote, the Ninth Circuit panel dismissed the case for lack of Article III standing. Writing for the majority, Judge Hurwitz wrote that "it is beyond the power of an Article III court to order, design, supervise, or implement the plaintiffs' requested remedial plan.

As the opinions of their experts make plain, any effective plan would necessarily require a host of complex policy decisions entrusted, for better or worse, to the wisdom and discretion of the executive and legislative branches."^[62]

In dissent, Judge Staton characterized the majority as shirking its judicial responsibility to rectify a grave constitutional wrong in the manner the U.S. Supreme Court laudably did in its landmark Brown v. Board of Education decision, stating, "My colleagues throw up their hands, concluding that this case presents nothing fit for the Judiciary."^[63] She further argued, "No case can singlehandedly prevent the catastrophic effects of climate change predicted by the government and scientists. But a federal court need not manage all of the delicate foreign relations and regulatory minutiae implicated by climate change to offer real relief, and the mere fact that this suit cannot alone halt climate change does not mean that it presents no claim suitable for judicial resolution."^[64]

In an analogy from her impassioned dissent that became widely cited in the news media,^[65][66][67] Judge Staton stated that "[i]n these proceedings, the government accepts as fact that the United States has reached a tipping point crying out for a concerted response – yet presses ahead toward calamity. It is as if an asteroid were barreling toward Earth and the government decided to shut down our only defenses. Seeking to quash this suit, the government bluntly insists that it has the absolute and unreviewable power to destroy the Nation."^[68] Lawyers for the plaintiffs stated their intent to appeal this dismissal to the full Ninth Circuit sitting en banc,^[62][69] and subsequently filed such a petition. ^[70]

Involved parties

see below

11/18

https://www.nature.com/articles/d41586-018-07214-2

A landmark climate-change lawsuit brought by young people against the US government can proceed, the Supreme Court said on 2 November. The case, Juliana v. United States, had been scheduled to begin trial on 29 October in Eugene, Oregon, in a federal district court. But those plans were scrapped last month after President Donald Trump's administration asked the Supreme Court to intervene and dismiss the case.

The plaintiffs, who include 21 people ranging in age from 11 to 22, allege that the government has violated theirconstitutional rights to life, liberty and propertyby failing to prevent dangerous climate change. They are asking the district court to order the federal government to prepare a plan that will ensure the level of carbon dioxide in the atmosphere falls below 350 parts per million by 2100, down from an average of 405 parts per million in 2017.

By contrast, theUS Department of Justice argues that “there is no right to ‘a climate system capable of sustaining human life’” — as the Juliana plaintiffs assert.

Although the Supreme Court has now denied the Trump administration's request to the dismiss the case, the path ahead is unclear. In its 2 November order, the Supreme Court suggested that a federal appeals court should consider the administration's arguments before any trial starts in the Oregon district court.

Lawyers for the young people said they would push the district court to reschedule the trial next week.

“The youth of our nation won an important decision today from the Supreme Court that shows even the most powerful government in the world must follow the rules and process of litigation in our democracy,” said Julia Olson, co-counsel for the plaintiffs, in a statement reacting to the Supreme Court decision.

A new generation

Although climate change is a global problem, lawyers around the world have brought climate-change-related lawsuits against local and national governments and corporations since the late 1980s. These suits have generally sought to force the sort of aggressive action against climate change that has been tough to achieve through political means.

Many of the cases have failed, but in 2015, a citizen’s group called the Urgenda Foundation won a historic victory against the Dutch government. The judge in that case ordered the Netherlands to cut its greenhouse-gas emissions to at least 25% below 1990 levels by 2020, citing the possibility of climate-related damages to “current and future generations of Dutch nationals” and the government’s “duty of care … to prevent hazardous climate change”. A Dutch appeals courtupheld the verdict last month.

Over the past few years, the Dutch case has emerged as a model for climate lawsuits in other countries, says Gillian Lobo, a lawyer who specializes in climate-change-related cases at ClientEarth in London. More recently, she says, the Juliana lawsuit has inspired its own copycats — some of which have progressed further than Juliana itself. “It is a global phenomenon,” Lobo says.

One case modelled on the Juliana lawsuit has already produced a striking victory. In January, 25 young people sued the Colombian government for their right to a healthy environment, in a case called Demanda Generaciones Futuras v. Minambiente.

The Colombian Supreme Court found in the plaintiffs’ favour in April. Not only did it order the government to take steps to reduce deforestation and climate change, it also ruled that the Colombian Amazon rainforest is “a subject of rights” that is entitled to “protection, conservation, maintenance and restoration”.

Fuzzy future

The young plaintiffs in the Juliana case allege that they have already suffered harm as a result of climate change. Seventeen-year-old Jaime and her family left their home on the Navajo Nation Reservation in Cameron, Arizona, in 2011 because the natural springs on which they depended for water were drying up. Fifteen-year-old Jayden’s home in Louisiana was severely damaged by flooding in 2016, and 19-year-old Vic’s school in White Plains, New York, closed temporarily in 2012 after Hurricane Sandy hit.

US climate hawks hope that the Juliana plaintiffs will ultimately prevail, but President Donald Trump’s administration is mounting a multipronged defence. The Justice Department denies that the district court in Oregon has jurisdiction over the broad sweep of federal policies at issue, and that the rights to life, liberty and property set out in the Fifth Amendment to the Constitution translate into the right to a stable climate.

In any case, the department argues, no meaningful redress is possible, given that drastically reducing emissions in the United States might not move the needle on climate change much if other countries’ greenhouse-gas output grows. This echoes the argument made in 2007 by the Supreme Court's chief justice, John Roberts, when he dissented from the court’s decision in a pivotal climate case, Massachusetts vs. Environmental Protection Agency. The court’s ruling, which Roberts protested, forced the agency to regulate carbon emissions as a pollutant.

Andrea Rodgers, co-counsel for the Julianaplaintiffs, says that the Trump administration hasn’t challenged the fact that humans are changing the climate. “They haven’t presented experts to contest what our scientists are saying about ice melt or sea-level rise or terrestrial impacts or how climate change happens or ocean acidification,” she says.

To win, Rodgers says, “we have to show that the United States government is liable, but also that there is a remedy that the judge can order”. The United States has seen its greenhouse-gas emissions drop in recent years, as the country shifts its energy mix away from coal and towards renewable sources, but as of 2016, it remains the second-largest emitter after China.

James Hansen, a climatologist at Columbia University in New York City and a long-time climate activist, is an expert witness in the case — but he is also a plaintiff, representing “future generations” not yet born. (His 20-year-old granddaughter, Sophie Kivlehan, is also a plaintiff.)

Hansen has been fighting for action on climate change since he first testified on the subject before the US Senate in 1988. He says that if the Julianaplaintiffs lose their case, he will simply try another way. “We need to win as soon as possible,” Hansen says, “but if we lose, we don’t give up — we come back with a stronger case.”

Nature 563, 163-164 (2018)

doi: 10.1038/d41586-018-07214-2

hmn:

tool/site: http://blogs.law.columbia.edu/climatechange/2018/11/06/november-2018-updates-to-the-climate-case-charts/

Each month, Arnold & Porter and the Sabin [metals?] Center for Climate Change Law [columbia U] collect and summarize developments in climate-related litigation, which we also add to our U.S. and non-U.S. climate litigation charts. If you know of any cases we have missed, please email us at columbiaclimate@gmail.com.

HERE ARE THE ADDITIONS TO THE CLIMATE CASE CHART SINCE UPDATE # 115.

FEATURED CASE

Supreme Court Denied Stay of Young People’s Constitutional Climate Case, Saying Federal Government Could Ask Ninth Circuit to Stop Case

On November 2, 2018, the U.S. Supreme Court issued an order denying the federal government’s application for a stay of district court proceedings in the constitutional climate case brought by young plaintiffs in the District of Oregon. The Court also vacated an administrative stay granted by Chief Justice Roberts on October 19. The federal government had sought a stay pending the Court’s disposition of a petition for a writ of mandamus ordering the district court to dismiss the suit.

The trial had been scheduled to start on October 29. The Court said the petition for a writ of mandamus did not have a “fair prospect” of success because the government could still seek mandamus relief in the Ninth Circuit. The Court noted that while the Ninth Circuit had denied two earlier requests for mandamus relief in this case, “the court’s basis for denying relief rested, in large part, on the early stage of the litigation, the likelihood that plaintiffs’ claims would narrow as the case progressed, and the possibility of attaining relief through ordinary dispositive motions.” The Supreme Court indicated that those reasons were, “to a large extent, no longer pertinent” since a 50-day trial was scheduled to begin on October 29, 2018 and had been held in abeyance only because of Chief Justice Roberts’s administrative stay. Justices Gorsuch and Thomas would have granted the stay.

Earlier in October, the district court largely denied the federal government’s dispositive motions in the case. The district court granted in part and denied in part motions for summary judgment and judgment on the pleadings. The court declined to rule for the defendants at this stage on the primary claims advanced by the plaintiffs: a “state-created danger” due process claim and a public trust claim. The court dismissed President Trump from the action (but without prejudice) and also granted summary judgment to the defendants on the plaintiffs’ Ninth Amendment claim and on an equal protection claim based on “posterity” being a suspect classification.

The district court said, however, that an equal protection claim based on alleged interference with a right to a climate system capable of sustaining human life would be aided by further development of a factual record.

The district court rejected arguments that the case was required to be heard under the Administrative Procedure Act; that separation of powers principles foreclosed the plaintiffs’ claims; that plaintiffs lacked standing; and that there is no right to a climate system capable of sustaining human life. The district court declined to certify its decisions for interlocutory appeal. On the same day, the district court denied the government’s motion for a stay pending Supreme Court review.

On October 12, a few days prior to the district court’s ruling on the dispositive motions and denial of the government’s motion for a stay, the government filed a third petition for writ of mandamus in the Ninth Circuit Court of Appeals, also seeking a stay of district court proceedings pending Supreme Court review. On November 2, 2018, just hours before the Supreme Court denied the government’s stay application, the Ninth Circuit Court of Appeals issued an order denying the federal government’s request. The Ninth Circuit said that Chief Justice Roberts’s granting of a stay of the litigation on October 19 rendered the government’s “non-substantive” motion moot.

Correction: The October monthly update indicated incorrectly that the trial in Juliana v. United States was expected to last two weeks. Lawyers for the parties estimated that the trial would last 50 days or 8 to 12 weeks.

In re United States, No. 18-505/18A-410 (U.S. Nov. 2, 2018); United States v. U.S. District Court for District of Oregon, No. 18-72776 (9th Cir. Nov. 2, 2018); Juliana v. United States, No. 6:15-cv-1517 (D. Or. Oct. 15, 2018). Link to case page is available here.

DECISIONS AND SETTLEMENTS

Supreme Court Declined to Consider Appeals of D.C. Circuit Ruling That EPA Lacked Authority to Issue Rule Restricting HFCs with High Global Warming Potential...

desmog 920

https://www.desmogblog.com/2020/09/03/youth-climate-lawsuit-portugal-33-european-countries

six young people from Portugal have filed an unprecedented climate change lawsuit against almost all of Europe, targeting 33 European nations for failing to take adequate action on the climate crisis that they say threatens their human rights.

It is the latest in a series of legal actions brought by young people around the world demanding urgent climate action to protect their fundamental rights and safeguard their futures.

Six young people from Portugal have filed an unprecedented climate change lawsuit against almost all of Europe, targeting 33 European nations for failing to take adequate action on the climate crisis that they say threatens their human rights.

It is the latest in a series of legal actions brought by young people around the world demanding urgent climate action to protect their fundamental rights and safeguard their futures.

The case was filed on September 3 in the European Court of Human Rights in Strasbourg, France. It is the first climate case brought directly to this international court. Lawyers for the youth plaintiffs will argue that European governments’ current plans for cutting greenhouse gas emissions are insufficient to prevent catastrophic climate change and therefore constitute human rights violations under the European Convention on Human Rights.

“If successful, the 33 countries would be legally bound, not only to ramp up emissions cuts, but also to tackle overseas contributions to climate change, including those of their multinational companies,” the charity Global Legal Action Network, which is providing legal support for the case, explained in a press release.

These 6 Portuguese young people face a devastating future of spiraling heat extremes

Today, with our support, they've filed an unprecedented climate case against 33 European states demanding deep & urgent cuts to their carbon emissions

Countries named as defendants in the case include:

Austria, Belgium, Bulgaria, Cyprus, Czech Republic, Germany, Greece, Denmark, Estonia, Finland, France, Croatia, Hungary, Ireland, Italy, Lithuania, Luxembourg, Latvia, Malta, the Netherlands, Norway, Poland, Portugal, Romania, Russia, Slovak Republic, Slovenia, Spain, Sweden, Switzerland, the United Kingdom, Turkey, and Ukraine.

These nations make up the European Union plus six other countries that together are the major emitters in Europe.

According to research from Climate Action Tracker, which tracks and analyzes countries’ emissions reduction policies, the policies of these nations do not align with the Paris Agreement goals of limiting global temperature rise to well below 2 degrees C (3.6 degrees F) and pursuing a limit of 1.5 degrees C (2.7 degrees F).

The United Nations Environment Programme refers to this misalignment between what nations of the world promised under the Paris Agreement and what their domestic policies on emissions cuts actually represent as the “emissions gap.” Under current climate policies, the world is on track for more than 3 degrees C (5.4 degrees F) of warming by 2100. An October 2018 report from the Intergovernmental Panel on Climate Change warned of increased risks to human health, livelihoods, food and water security, and other dangerous impacts if warming exceeds 1.5 degrees C.

But top climate scientists like Dr. James Hansen have warned that even warming of 1.5 degrees C is not safe. In a 2013 paper Hansen and colleagues explained that rapid emissions reductions are needed to stabilize the climate and “avoid potentially disastrous impacts on today’s young people, future generations, and nature.” That paper pointed to the “intergenerational injustice” of the climate crisis and suggested that courts could play a key role in remedying that injustice....

ATI NASA bs

https://archive.thinkprogress.org/what-is-the-climate-science-legal-defense-fund-74d020a4eb04/

https://www.nytimes.com/2012/05/10/opinion/game-over-for-the-climate.html

OP-ED CONTRIBUTOR

Game Over for the Climate

By James Hansen

May 9, 2012

wiki

climatologist James Hansen as a "guardian for future generations".2015 Hansen's granddaughter Sophie Kivlehan was one of the named plaintiffs.)...Three fossil fuel industry groups, the American Petroleum Institute, American Fuel and Petrochemical Manufacturers, and the National Association of Manufacturers, initially intervened in the case as defendants, joining the U.S. government in trying to have the case dismissed. [then withdrew b/c they did not want to take a postion on_ OR open themselves to discovery?!

Kelsey Cascadia Rose Juliana[72]

Xiuhtezcatl Martinez...

Defendants

https://www.nationalgeographic.com/news/2017/03/kids-sue-us-government-climate-change/

... kids’ lawsuit was joined by acclaimed NASA climate scientist James Hansen, who began studying climate change in the 1970s and whose granddaughter, Sophie, is among the 21 young plaintiffs.

“In my opinion, this lawsuit is made necessary by the at-best schizophrenic, if not suicidal nature of U.S. climate and energy policy,” he told the court.

Last fall, U.S. District Court Judge Anne Aikenagreed with the youths’ claim. Her sweeping 54-page opinion laid the foundation for what looks to be a groundbreaking trial later this year. In her ruling, Aiken established, in effect, a new right for these children and teens: a right to expect they could live in a stable climate.

“I have no doubt that the right to a climate system capable of sustaining human life is fundamental to a free and ordered society,” Aiken wrote. “Just as marriage is the foundation of the family, a stable climate system is quite literally the foundation of society, without which there would be neither civilization nor progress.”

She made clear that “this lawsuit is not about proving that climate change is happening or that human activity is driving it. For purposes of this motion, those facts are undisputed.”

And Aikens added: “Federal courts too often have been cautious and overly deferential in the arena of environmental law and the world has suffered for it.”

Mary Wood, a University of Oregon environmental law professor who pioneered the concept that the atmosphere should be treated as part of the public trust, calls the lawsuit “the biggest case on the planet.”

“This claim challenges the government’s entire fossil-fuel philosophy. The whole thing,” Wood says. “The scientists, on the other hand, are saying if we continue on our path without drastic cuts in carbon dioxide emissions, we are going to leave a barren planet that will not support broad human survival. You could not get claims more grave than that.”

Two administrations (and industry) respond

The lawsuit originally was filed against the Obama administration, which sought to have the case dismissed because the courts are “ill-suited” to oversee “a phenomenon that spans the globe,” according to court papers.

“Climate change is a very serious problem,” Sean Duffy, a Justice Department lawyer told the court last September. “We do not question the science. Climate change threatens our environment and our ecosystems. It alters our climate systems and it will only worsen over time. It is the result of man-made emissions. Now where (the parties) disagree is as to who determines how to address climate change in the first instance. Our position is that Congress and the Executive Branch should address climate change in the first instance and should do so by coordinating with other nations.”

Several groups representing the fossil-fuel industry, including the American Petroleum Institute, joined the lawsuit as intervenors, but disagreed “to the extent of climate change, to the emissions that cause it, and to other scientific principles,” Quin Sorenson, a lawyer representing the industry, argued in court.

The case could prove even more consequential with the change of administration because of President Trump’s efforts to roll back climate regulations put in place by his predecessor. Last week, the Trump administration shifted course on the case and asked that a federal appeals court review Judge Aiken’s decision to proceed to trial.

“Whatever happens next, this is a case to watch,” says Michael Burger, a Columbia University law professor and specialist in climate law. “It’s out there, ahead of the curve. And given the change in administration and President Trump’s views on climate change, this may be a potential hook to keep things moving along the climate change front. It may be the opening salvo in what will be an increasing number of lawsuits that take a rights-based approach to climate change in the United States.”

Building on history

In challenging the government’s role in climate change on constitutional grounds Julia Olson,the plaintiffs’ lead lawyer, harkens to the realm of historic Supreme Court cases that established new constitutional protections in situations when Congress failed to act. Those cases include the 1954 Brown v. Board of Education decision that banned segregation in public schools and the 2015 Obergefell v. Hodges decision that legalized same-sex marriage.

The climate change lawsuit makes essentially a straightforward request. It asks a federal judge to order the government to write a recovery plan to reduce carbon emissions to 350 parts per million by 2100 (down from 400 parts per million) and stabilize the climate system.

The courts are needed to step in, Olson argued, because the government has not—despite knowing for more than 50 years that the burning of fossil fuels causes global warming.

Olson first tuned in to the climate change threat when, eight months pregnant with her youngest child, she watched An Inconvenient Truth, former Vice President Al Gore’s 2006 Oscar-winning climate change documentary at her local moviehouse.

“There is something about carrying life inside your body that is transformative and gives you a different kind of perspective on the world,” she says.

She founded Our Children’s Trust, a nonprofit with a mission to protect children from climate change, and now serves as executive director. The trust is assisting in the case. Olson has also filed climate change lawsuits in each of the 50 states, which are proceeding separately. She has won cases in Washington, Massachusetts, and New Mexico.

Similar lawsuits, brought by other lawyers, are playing out in other nations, including Belgium and New Zealand, and have been won in Pakistan, Austria and South Africa. Last year, a Dutch court ordered the government to reduce carbon emissions by a quarter within the next five years.

Olson’s clients in the federal suit range in age from nine to 20. They are media savvy environmental activists who understand the power of connecting the future effects of climate change to the people who will have to live with them.

Kiran Oommen, 19, a student at Seattle University, says he joined the lawsuit because it gives voice to his generation.

“We have little or no representation in the government, yet the effects of climate change will affect us more than anyone else,” he says. “This is a way we can speak for ourselves and stand up for our future.”

Aji Piper, 16, is a high school student in Seattle who plants trees around the city and is an avid letter-writer to the state’s polluting industries. He adds: “Once you start involving children, people start listening more. My role in the case is to sit there in court.”

The climate kids, as the group is known, also are living the full menu of drought, deluge, heat, and extreme weather events that are rapidly becoming the unnerving norm. Not only has sea-level rise killed any long-term future Levi Draheim might have envisioned on Florida’s Space Coast, but he has to cope with toxic algae blooms like the outbreak that befouled beaches last July and monster storms, such as Hurricane Matthew, which barreled up the Florida coast last October and eroded away much of the sand on his beach....

new

no lnx twt

Judges Point Dismissed Youth Climate Plaintiffs to Political System Corrupted by Fossil Fuel Cash

Read time:

By Dana Drugmand • Friday, January 24, 2020

Youth climate justice protest in Minnesota

When a pair of Ninth Circuit Court judges ordered dismissal of a landmark youth climate change lawsuit last week, they concluded that the U.S. government may be harming the nation’s youth through its fossil fuel-based energy policy, but that courts cannot stop that harm. “Rather, the plaintiffs’ impressive case for redress must be presented to the political branches of government,” Judge Andrew Hurwitz wrote in a split 2-1 decision dismissing Juliana v. United States.

The decision to dismiss Juliana without a trial raises troubling implications about the state of America’s constitutional democracy and the role that courts can play in harming, rather than protecting, the public interest, according to legal and scientific experts.

The case, first filed in 2015 against the Obama administration, sought a court order directing the federal government to devise a science-based climate recovery plan to draw down carbon emissions and protect young people’s right to a climate system “capable of sustaining human life.” The 21 young plaintiffs claimed violations of their constitutional rights, asking the courts to act as a check against the political branches that have exacerbated the climate crisis.

Trial Matters and Fossil Fuel Cash

Up to this point, the courts have been unwilling to halt the case, which had been scheduled for trial twice, only to be derailed by the Trump administration’s attempts to avoid trial. A trial would have exposed the government’s longstanding record of cozying up to fossil fuel interests and continuing to support their development with federal policy and dollars, despite extensive knowledge of the climate crisis coming from its own scientists.

A trial itself could have presented a major breakthrough in a political system paralyzed by fossil fuel money and influence, but the Ninth Circuit ruling shut down that opportunity, redirecting the plaintiffs back to that system flooded with special interest cash.

Exactly 10 years ago, the Supreme Court opened the floodgates to unlimited corporate spending in elections with the infamous Citizens United decision. Since then, according to consumer advocacy nonprofit Public Citizen, “more than 2,200 corporations have reported a total of $313 million in donations to more than 500 political entities for the purpose of influencing elections. Additionally, 30 corporate trade groups, which do not disclose their donors, have spent $226 million, for a corporate spending total of $539 million.”

The fossil fuel industry, Public Citizen reports, “is the best represented among the top 20 corporate donors.” Chevron, for example, has spent almost $8.2 million to elect Republicans in Congress. Koch Industries has spent $5.9 million, and coal company Murray Energy has spent nearly $3 million, including $1 million to pro-Trump super PAC America First Action and contributions to several other GOP-supporting super PACs.

This fossil fuel money, further enabled and also presumably cloaked by Citizens United, has effectively made recipients subservient to the donors’ interests, as environmental sociologist Robert Brulle’s research on climate science denial funding has previously suggested.

“The real issue here is one of democracy. Without a free flow of accurate information, democratic politics and government accountability become impossible,” said Brulle in 2013. “Money amplifies certain voices above others and, in effect, gives them a megaphone in the public square. Powerful funders are supporting the campaign to deny scientific findings about global warming and raise public doubts about the roots and remedies of this massive global threat.”

Meanwhile, the last decade was the warmest on record, two U.S. government science agencies reported this month, but Congress has failed to pass any piece of major legislation on climate action. And the executive branch, no matter who has been in office, has also failed to address the climate crisis at the scale and urgency needed and instead kept supporting one form of fossil fuels or another, as climate activist Bill McKibben has pointed out with the case of natural gas.

This is especially apparent in the Trump administration, which is actively rolling back 95 environmental regulations and climate protections while trying to expedite fossil fuel development.

Government Support for Fossil Fuels

The Ninth Circuit court opinion noted the government’s role in prioritizing fossil fuels. “The government affirmatively promotes fossil fuel use in a host of ways, including beneficial tax provisions, permits for imports and exports, subsidies for domestic and overseas projects, and leases for fuel extraction on federal lands.”

Furthermore, an amicus brief filed last year in support of the youth plaintiffs by Democratic members of Congress makes the following point: “The issues of whether resources foundational to human survival and security can be destroyed or irreversibly harmed cannot be deliberated solely by our government’s political branches: Elected officials accept money from the very interest groups that profit off of this destruction.”

Fossil fuel influence and money has largely captured political branches of the U.S. government, and yet the Ninth Circuit majority still concludes “that the plaintiffs’ case must be made to the political branches or to the electorate at large.”

Young supporter of the Juliana v. US climate lawsuit

Young supporters of the Juliana v. United States climate lawsuit rally in Chicago in 2018. Credit: Charles Edward Miller, CC BY-SA 2.0

In a scathing dissent, District Judge Josephine Staton rebuked this conclusion, warning that deferring to the political branches when they are perpetuating a grave harm would be detrimental to constitutional democracy.

“The majority laments that it cannot step into the shoes of the political branches, but appears ready to yield even if those branches walk the Nation over a cliff,” Staton writes. “This promotes separation of powers to the detriment of our countervailing constitutional mandate to intervene where the political branches run afoul of our foundational principles.”

Several legal experts concurred with Staton’s take that the majority opinion shirks the judiciary’s core function in our system of government.

“Yet remarkably, having recognized the gravity of harms affecting these plaintiffs and the future generations that they represent, and the responsibility of the U.S. government for causing those harms, the Ninth Circuit concludes that it is not the role of courts to remedy that injustice,” said Carroll Muffett, president of the Center for International Environmental Law. “But for centuries, and emphatically, that has been the definition of the role of courts: when plaintiffs are suffering harms to fundamental rights at the hands of other branches of government, addressing those wrongs and protecting plaintiffs’ rights is the essential and inescapable domain of the federal courts.”

Vermont Law School Professor Patrick Parenteau, who was this author’s climate law professor, offered a similar reaction. “The majority takes the position that as bad as all this [is], there is ‘nothing we can do about it.’ This is wrong as a matter of law and an abdication of the solemn duty the courts have in our democracy,” Parenteau said. “Having acknowledged that this is a ‘matter of national survival’ and that the other branches of government are utterly failing to acknowledge, let alone confront the danger, it is absolutely the duty of the judiciary to step in to enforce the fundamental rights guaranteed by the constitution.”

Furthermore, the judges who ruled to dismiss the youth climate case failed to demonstrate why the court should not uphold that historical duty, Parenteau added. “As the dissent points out, the majority cites no compelling precedent for abandoning this core function in our system of constitutional checks and balances.”

Waiting Not an Option

The plaintiffs and their lawyers said they are not dropping their case and plan to ask the full Ninth Circuit Court to weigh in. “The ?Juliana? case is far from over. The youth plaintiffs will be asking the full court of the Ninth Circuit to review this decision and its catastrophic implications for our constitutional democracy,” said Julia Olson, executive director of the nonprofit Our Children’s Trust and co-counsel for the youth plaintiffs.

“THIS ISN'T OVER,” added Kelsey Juliana, lead plaintiff in the case. “Prepare for a petition for review en banc to the Ninth Circuit as we refuse to do anything but move forward and ultimately win. Courts do have an obligation to address issues of constitutional, existential crisis, like climate change.”

According to Parenteau, this could be the end of the road for the Juliana plaintiffs as the courts have indicated they are uncomfortable with the sweeping remedy the plaintiffs seek. The law professor said review by the full Ninth Circuit is unlikely to result in a different outcome, and the Supreme Court is also unlikely to treat the case in a way favorable to plaintiffs. “As disappointing as the panel decision is, it could be far worse if it were adopted and perhaps expanded by the conservative majority on the Court,” he said.

Left without judicial recourse, America’s young people have few other options when their government has refused to act on the climate crisis. “The plaintiffs have waited their entire lives for the political branches to take ownership of and action on the climate crisis,” Muffett noted. Continuing to wait, as Judge Staton acknowledges, “is not an option” given the scientific urgency.

As social scientists Geoffrey Supran and Naomi Oreskes point out, fossil fuel interests have spent decades and billions of dollars on “advertising and lobbying challenging science, slandering scientists, and attacking policies to protect their profits. In so doing, they have undermined — and continue to undermine — Americans’ chances of a just and stable future.”

Polling shows that a majority of Americans support the government taking action on climate change. However, continued government ambivalence and the ongoing effort by fossil fuel interests to undermine climate action suggests a political system that is not responsive to the public interest, points out Union of Concerned Scientists President Ken Kimmell.

“In a functional democracy, communities facing catastrophic flooding, heat waves, and other climate impacts would be able to press elected officials to comprehensively and effectively cut the emissions of heat-trapping gases and reduce the massive harm that we are experiencing now and will experience in the future,” Kimmell said in a statement responding to the dismissal of the Juliana climate case. “But, as District Judge Staton stressed in her dissent, we live in a time where the government has failed to act — in large part due to the fossil fuel industry’s outsized influence — despite overwhelming scientific evidence that delaying action will only lock in more severe climate impacts.”

https://theconversation.com/the-dramatic-dismissal-of-a-landmark-youth-climate-lawsuit-might-not-close-the-book-on-that-case-130162

a sharply divided panel of three federal judges on Jan. 17 dismissed a high-profile climate lawsuit brought on behalf of 21 young people against the federal government.

The Ninth Circuit Federal Court of Appeals’ ruling accepted with unusual bluntness that the federal government’s climate policies may pose “clear and present danger” capable of destroying the nation, but said it’s up to the federal government and Congress, not the U.S. courts, to do something about it.

The three judges agreed that the young plaintiffs have constitutional rights to a stable climate system, but judges Andrew D. Hurwitz and Mary H. Murguia said that courts have no role in bringing that about. Likely remedies would involve changes in transportation and energy policies, along with public lands management.

Lawyers for the youth plaintiffs in Juliana v. United States said that they aren’t giving up. They plan to petition the full court of 29 active Ninth Circuit court judges to review the case.

As environmental law professors, we often write and teach students about this groundbreaking case. In our view, this case is important not only because it seeks to force the federal government to phase out fossil fuels, but also because it frames the climate crisis in terms of fundamental constitutional rights.

Public trust doctrine

The lawsuit challenges U.S. energy policies, which the plaintiffs allege have destabilized the climate system and jeopardize human life, private property and “civilization” itself.

The case, filed in 2015, originally took aim at the Obama administration and now targets the Trump administration. It accuses government defendants of promoting fossil fuels for decades with “deliberate indifference to the peril they knowingly created.”

The young plaintiffs alleged a host of individual harms from climate disruption, including damage from fires, floods, sea level rise and ocean warming that affects fisheries.

The case has surmounted big hurdles before.

The youth won a landmark victory in 2016 in the District Court of Oregon when Judge Ann Aiken ruled that the plaintiffs had a constitutional right to a “climate system capable of sustaining human life,” grounded in the due process clause of the Constitution and the public trust doctrine, a principle with ancient roots requiring government to hold and protect essential resources as a sustaining endowment for citizens, in the present and the future.

A trial scheduled for Oct. 29, 2018, would have marked a first. Had it gone forward, the courts would have appraised the dangers U.S. fossil fuel policies pose, based on objective climate science.

But federal lawyers won an early appeal to the Ninth Circuit, which led first to a delay and subsequently this dismissal.

‘On the Eve of Destruction’

The three judges did agree on something: The federal government’s promotion of fossil fuel use is pushing the nation toward collapse.

Quoting the 1960s-era protest song “Eve of Destruction,” Judge Hurwitz, writing for himself and Judge Murguia, blamed the federal government for long knowing that fossil fuels can cause “catastrophic climate change.” He warned that the policies now in place may hasten “environmental apocalypse” – burying cities, unleashing life-threatening disasters and jeopardizing crucial food and water sources.

The majority offered no hope that political leaders would respond in time.

Observing that atmospheric carbon dioxide levels have “skyrocketed to levels not seen for almost 3 million years,” and the U.S. is expanding oil and gas extraction four times faster than that of any other nation – growth that “shows no signs of abating” – Hurwitz wrote the problem is “approaching the point of no return.”

In a forceful dissent, Judge Josephine L. Staton countered:

“It is as if an asteroid were barreling toward Earth and the government decided to shut down our only defenses. The government bluntly insists that it has the absolute and unreviewable power to destroy the Nation. My colleagues throw up their hands.”

The role of the court

There was some good news for plaintiffs in the decision. The court would have found sufficient injury and causation, both needed to grant judicial review, but it was troubled with the court’s role in providing a climate remedy.

The majority thought that the separation of powers between the three branches of government relegates courts to the sidelines. The dissent instead viewed the separation of powers principle to call courts to the forefront. Staton saw an implicit duty embedded in the Constitution that obliges courts to prevent the other branches from bringing the nation to its demise.

The Founders gave an independent judiciary the responsibility of preventing the other branches from trammeling fundamental liberties of citizens. As the window of opportunity to avert climate disaster closes, checks and balances in government matter more than ever before.

The Supreme Court of the Netherlands, in December 2019, rejected the argument that the Juliana majority endorsed. That court found that the judicial branch may require the political branches to act, ordering a 25% reduction in emissions from 1990 levels by the end of 2020.

Brown as a precedent

The divided Juliana panel fundamentally disagreed on courts’ ability to provide a remedy.

The plaintiffs ask for a court-supervised federal plan to shrink the nation’s carbon footprint at a rate necessary to stave off disastrous levels of climate change. They draw a parallel with ending official school segregation after the Supreme Court’s landmark Brown v. Board of Education ruling in 1954.

In that case, the Supreme Court found public school segregation to be unconstitutional. The justices also recognized that their decision – intended to protect the rights of all children to public education – would require courts to supervise detailed and complex remedial action by school authorities.

The Juliana majority believed judicial supervision would mire the courts in protracted and complex policy issues. Had the courts invoked that logic in the 1950s, the Supreme Court might never have handed down its Brown ruling, which ordered public school desegregation “with all deliberate speed.”

The Juliana plaintiffs had also filed an urgent motion in the Ninth Circuit for an injunction to block several classes of fossil fuel projects the Trump administration was poised to deploy. An injunction could have pulled an emergency brake on U.S. fossil fuel emissions, but the majority swept away the request in a footnote – with no discussion.

What’s next?

The youth will ask the Ninth Circuit for full review. If granted, a panel of 11 judges will have an opportunity to reverse or affirm the panel’s decision to dismiss the case. The court allows this step, known as an “en banc” review, in very few cases. A majority of judges on the 29-member court would have to vote to accept the case.

The Juliana plaintiffs may defy these slim odds. As Staton observed, the urgency and danger of the climate crisis puts this case in a “category of one.”

This landmark case may also receive further review because of its sweeping implications for the courts’ ability to provide redress for constitutional violations.

No matter what the outcome of the youths’ long-shot appeal to the full court, the losing party will likely seek review by the U.S. Supreme Court.

Taking a stand

While the legal destiny of this case remains uncertain, the recent majority opinion, paired with the dissent, may sharpen awareness of what is at stake.

Vivid descriptions of climate catastrophe in both opinions define an inescapable moment of truth for the destiny of the United States – in Staton’s words, “an existential crisis to the country’s perpetuity.”

Her dissent presses judges deciding climate cases to choose a side of history, asking: “When the seas envelop our coastal cities, fires and droughts haunt our interiors, and storms ravage everything between, those remaining will ask: Why did so many do so little?”

The 29 federal judges who sit on the Ninth Circuit Court of Appeals will have to answer that question when they decide whether to keep this case alive.

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

KELSEY CASCADIA ROSE JULIANA;

XIUHTEZCATL TONATIUH M.,

through his Guardian Tamara RoskeMartinez; ALEXANDER LOZNAK;

JACOB LEBEL;ZEALAND B., through

his Guardian Kimberly Pash-Bell;

AVERY M., through her Guardian

Holly McRae; SAHARA V., through

her Guardian Toa Aguilar; KIRAN

ISAAC OOMMEN;TIA MARIE

HATTON;ISAAC V., through his

Guardian Pamela Vergun; MIKO V.,

through her Guardian Pamel Vergun;

HAZEL V., through her Guardian

Margo Van Ummerson; SOPHIE K.,

through her Guardian Dr. James

Hansen; JAIME B., through her

Guardian Jamescita Peshlakai;

JOURNEY Z., through his Guardian

Erika Schneider; VICTORIA B.,

through her Guardian Daisy

Calderon; NATHANIEL B., through

his Guardian Sharon Baring; AJI P.,

through his Guardian Helaina Piper;

LEVI D., through his Guardian

Leigh-Ann Draheim; JAYDEN F.,

through her Guardian Cherri Foytlin;

NICHOLAS V., through his Guardian

Marie Venner; EARTH GUARDIANS, a

No. 18-36082

D.C. No.

6:15-cv-01517-

OPINION

2 JULIANA V. UNITED STATES

nonprofit organization; FUTURE

GENERATIONS, through their

Guardian Dr. James Hansen,

Plaintiffs-Appellees,

UNITED STATES OF AMERICA;MARY

B. NEUMAYR, in her capacity as

Chairman of Council on

Environmental Quality; MICK

MULVANEY, in his official capacity

as Director of the Office of

Management and the Budget;

KELVIN K.DROEGEMEIR, in his

official capacity as Director of the

Office of Science and Technology

Policy; DAN BROUILLETTE, in his

official capacity as Secretary of

Energy; U.S.DEPARTMENT OF THE

INTERIOR;DAVID L.BERNHARDT, in

his official capacity as Secretary of

Interior; U.S. DEPARTMENT OF

TRANSPORTATION; ELAINE L. CHAO,

in her official capacity as Secretary

of Transportation; UNITED STATES

DEPARTMENT OF AGRICULTURE;

SONNY PERDUE, in his official

capacity as Secretary of Agriculture;

UNITED STATES DEPARTMENT OF

COMMERCE;WILBUR ROSS, in his

official capacity as Secretary of

Commerce; UNITED STATES

DEPARTMENT OF DEFENSE; MARK T.

JULIANA V. UNITED STATES 3

ESPER, in his official capacity as

Secretary of Defense; UNITED

STATES DEPARTMENT OF STATE;

MICHAEL R.POMPEO, in his official

capacity as Secretary of State;

ANDREW WHEELER,in his official

capacity as Administrator of the

EPA; OFFICE OF THE PRESIDENT OF

THE UNITED STATES;U.S.

ENVIRONMENTAL PROTECTION

AGENCY; U.S.DEPARTMENT OF

ENERGY; DONALD J. TRUMP,in his

official capacity as President of the

United States,

Defendants-Appellants.

Appeal from the United States District Court

for the District of Oregon

Ann L. Aiken, District Judge, Presiding

Argued and Submitted June 4, 2019

Portland, Oregon

Filed January 17, 2020

Before: Mary H. Murguia and Andrew D. Hurwitz, Circuit

Judges, and Josephine L. Staton,* District Judge.

Opinion by Judge Hurwitz;

Dissent by Judge Staton

* The Honorable Josephine L. Staton, United States District Judge

for the Central District of California, sitting by designation.

4 JULIANA V. UNITED STATES

SUMMARY**

Climate Change / Standing

The panel reversed the district court’s interlocutory

orders in an action brought by an environmental organization

and individual plaintiffs against the federal government,

alleging climate-change related injuries to the plaintiffs

caused by the federal government continuing to “permit,

authorize, and subsidize” fossil fuel; and remanded to the

district court with instructions to dismiss for lack of Article

III standing.

Some plaintiffs claimed psychological harms, others

impairment to recreational interests, others exacerbated

medical conditions, and others damage to property.

Plaintiffs alleged violations of their constitutional rights, and

sought declaratory relief and an injunction ordering the

government to implement a plan to “phase out fossil fuel

emissions and draw down excess atmospheric [carbon

dioxide].”

The panel held that: the record left little basis for denying

that climate change was occurring at an increasingly rapid

pace; copious expert evidence established that the

unprecedented rise in atmospheric carbon dioxide levels

stemmed from fossil fuel combustion and will wreak havoc

on the Earth’s climate if unchecked; the record conclusively

established that the federal government has long understood

the risks of fossil fuel use and increasing carbon dioxide

emissions; and the record established that the government’s

** This summary constitutes no part of the opinion of the court. It

has been prepared by court staff for the convenience of the reader.

JULIANA V. UNITED STATES 5

contribution to climate change was not simply a result of

inaction.

The panel rejected the government’s argument that

plaintiffs’ claims must proceed, if at all, under the

Administrative Procedure Act (“APA”). The panel held that

because the APA only allows challenges to discrete agency

decisions, the plaintiffs could not effectively pursue their

constitutional claims – whatever their merits – under that

statute.

The panel considered the three requirements for whether

plaintiffs had Article III standing to pursue their

constitutional claims. First, the panel held that the district

court correctly found that plaintiffs claimed concrete and

particularized injuries.

Second, the panel held that the

district court properly found the Article III causation

requirement satisfied for purposes of summary judgment

because there was at least a genuine factual dispute as to

whether a host of federal policies were a “substantial factor”

in causing the plaintiffs’ injuries.

Third, the panel held that

plaintiffs’ claimed injuries were not redressable by an

Article III court. Specifically, the panel held that it was

beyond the power of an Article III court to order, design,

supervise, or implement the plaintiffs’ requested remedial

plan where any effective plan would necessarily require a

host of complex policy decisions entrusted to the wisdom

and discretion of the executive and legislative branches.

The panel reluctantly concluded that the plaintiffs’ case

must be made to the political branches or to the electorate at

large.

District Judge Staton dissented, and would affirm the

district court. Judge Staton wrote that plaintiffs brought suit

to enforce the most basic structural principal embedded in

6 JULIANA V. UNITED STATES

our system of liberty: that the Constitution does not condone

the Nation’s willful destruction. She would hold that

plaintiffs have standing to challenge the government’s

conduct, have articulated claims under the Constitution, and

have presented sufficient evidence to press those claims at

trial.

JULIANA V. UNITED STATES 7

COUNSEL

Jeffrey Bossert Clark (argued), Assistant Attorney General;

Andrew C. Mergen, Sommer H. Engels, and Robert J.

Lundman, Attorneys; Eric Grant, Deputy Assistant Attorney

General; Environment and Natural Resources Division,

United States Department of Justice, Washington, D.C.;

for

Defendants-Appellants.

Julia A. Olson (argued), Wild Earth Advocates, Eugene,

Oregon; Philip L. Gregory, Gregory Law Group,Redwood

City, California; Andrew K. Rodgers, Law Offices of

Andrea K. Rodgers, Seattle, Washington; for Plaintiffs Appellees.

Theodore Hadzi-Antich and Ryan D. Walters, Texas Public

Policy Foundation, Austin, Texas, for Amici Curiae Nuckels

Oil Co., Inc. DBA Merit Oil Company; Liberty Packing

Company, LLC; Western States Trucking Association; and

National Federation of Independent Business Small

Business Legal Center.

Richard K. Eichstaedt, University Legal Assistance,

Spokane, Washington,

for Amici Curiae Eco-Justice

Ministries; Interfaith Moral Action on Climate; General

Synod of the United Church of Christ; Temple Beth Israel of

Eugene, Oregon; National Advocacy Center of the Sisters of

the Good Shepherd; Leadership Counsel of the Sisters

Servants of the Immaculate Heart of Mary of Monroe,

Michigan; Sisters of Mercy of the Americas’ Institute

Leadership Team; GreenFaith; Leadership Team of the

Sisters of Providence of Saint-Mary-of-the-Woods Indiana;

Leadership Conference of Women Religious; Climate

Change Task Force of the Sisters of Providence of SaintMary-of-the-Woods; Quaker Earthcare Witness; Colorado

8 JULIANA V. UNITED STATES

Interfaith Power and Light; and the Congregation of Our

Lady of Charity of the Good Shepherd, U.S. Provinces.

Dr. Curtis FJ Doebbler, Law Office of Dr. Curtis FJ

Doebbler, San Antonio, Texas; D. Inder Comar, Comar LLP,

San Francisco, California; for Amici Curiae International

Lawyers for International Law.

Wendy B. Jacobs, Director; Shaun A. Goho, Deputy

Director;Emmett Environmental Law & Policy Clinic,

Harvard Law School, Cambridge, Massachusetts; for Amici

Curiae Public Health Experts, Public Health Organizations,

and Doctors.

David Bookbinder, Niskanen Center, Washington, D.C., for

Amicus Curiae Niskanen Center.

Courtney B. Johnson, Crag Law Center, Portland, Oregon,

for Amici CuriaeLeague of Women Voters of the United

States and League of Women Voters of Oregon.

Oday Salim, Environmental Law & Sustainability Clinic;

Julian D. Mortensen and David M. Uhlmann, Professors;

Alexander Chafetz, law student; University of Michigan

Law School, Ann Arbor, Michigan; for Amicus Curiae

Sunrise Movement Education Fund.

Zachary B. Corrigan, Food & Water Watch, Inc.,

Washington, D.C., for Amici Curiae Food & Water Watch,

Inc.; Friends of the Earth – US; and Greenpeace, Inc.

Patti Goldman, Earthjustice, Seattle, Washington; Sarah H.

Burt, Earthjustice, San Francisco, California; for Amici

Curiae EarthRights International, Center for Biological

JULIANA V. UNITED STATES 9

Diversity, Defenders of Wildlife, and Union of Concerned

Scientists.

David Hunter and William John Snape III, American

University, Washington College of Law, Washington, D.C.,

for Amici Curiae International Environmental Law and

Environmental Law Alliance Worldwide—US.

Timothy M. Bechtold, Bechtold Law Firm PLLC, Missoula,

Montana, for Amici Curiae Members of the United States

Congress.

Rachael Paschal Osborn, Vashon, Washington, for Amici

Curiae Environmental History Professors.

Thomas J. Beers, Beers Law Offices, Seeley Lake, Montana;

Irma S. Russell, Professor, and Edward A. Smith, Missouri

Chair in Law, the Constitution, and Society, University of

Missouri-Kansas City School of Law, Kansas City,

Missouri; W. Warren H. Binford Professor or Law &

Director, Clinical Law Program, Willamette University,

Salem, Oregon; for Amicus Curiae Zero Hour on Behalf of

Approximately 32,340 Children and Young People.

Helen H. Kang, Environmental Law and Justice Clinic,

Golden Gate University School of Law, San Francisco,

California; James R. May and Erin Daly, Dignity Rights

Project, Delaware Law School, Wilmington, Delaware; for

Amici Curiae Law Professors.

Toby J. Marshall, Terrell Marshall Law Group PLLC,

Seattle, Washington, for Amici Curiae Guayaki Sustainable

Rainforest Products, Inc.; Royal Blue Organics; Organically

Grown Company; Bliss Unlimited, LLC, dba Coconut Bliss;

Hummingbird Wholesale; Aspen Skiing Company, LLC;

10 JULIANA V. UNITED STATES

Protect Our Winters; National Ski Areas Association;

Snowsports Industries America; and American Sustainable

Business Council.

Alejandra Núñez and Andres Restrepo, Sierra Club,

Washington, D.C.; Joanne Spalding, Sierra Club, Oakland,

California; for Amicus Curiae Sierra Club....

code fail ...? see main

https://www.ecowatch.com/juliana-v-united-states-tossed-2644863188.html

An appeals court tossed out the landmark youth climate lawsuit *Juliana v. United States* Friday, arguing that the courts are not the place to resolve the climate crisis.

The three-judge panel on the Ninth Circuit Court of Appeals agreed with the 21 young plaintiffs that the U.S. government had actively contributed to climate change by supporting a fossil-fuel based economy and that the young people had been injured by its actions, The Guardian explained. However, the majority ruled that the courts did not have the power to order a plan for government action to address the crisis, as the 12-to-23-year-old plaintiffs had requested.

"Reluctantly, we conclude that such relief is beyond our constitutional power," Judge Andrew D. Hurwitz wrote in the court's opinion. "Rather, the plaintiffs' impressive case for redress must be presented to the political branches of government."

[twt]

The decision raises the question of where young people can turn to ensure their futures are protected.

"The idea that their only recourse is to go to the very branches of government that are violating their rights when half of them can't even vote is a preposterous notion," the young people's lead lawyer Julia Olson told The New York Times.

In her dissent, Judge Josephine L. Staton agreed, criticizing her colleagues for "throw[ing] up their hands."

"Where is the hope in today's decision?" she wrote. "Plaintiffs' claims are based on science, specifically, an impending point of no return. If plaintiffs' fears, backed by the government's own studies, prove true, history will not judge us kindly. When the seas envelop our coastal cities, fires and droughts haunt our interiors, and storms ravage everything between, those remaining will ask: Why did so many do so little?"

The lawsuit was filed in 2015 by the 21 plaintiffs with the support of the nonprofit Our Children's Trust, according to Climate Liability News. It argues that by supporting a fossil-fuel based economy despite evidence it was contributing to climate change, the federal government violated the public trust and the young plaintiffs' constitutional rights to life, liberty and property.

For example, plaintiff Levi Draheim, 12, has had to repeatedly evacuate his home in Satellite Beach, Florida because of more extreme storms, according to The Guardian. Jaime Butler, 19, has been separated from her home and relatives in Navajo Nation because of water insecurity.

The federal government has tried to dismiss the case several times since it was filed, according to Climate Liability News. And Assistant Attorney General Jeffrey Bossert Clark told The New York Times that the government was "pleased with the outcome" of Friday's decision.

However, Our Children's Trust and the plaintiffs have vowed to keep fighting and to ask the full Ninth Circuit to review the decision, the group announced in a press release.

"We will continue this case because only the courts can help us," Draheim said. "We brought this lawsuit to secure our liberties and protect our lives and our homes. Much like the civil rights cases, we firmly believe the courts can vindicate our constitutional rights and we will not stop until we get a decision that says so."

If the full Ninth Circle refuses to hear the case, the group would then have to appeal to the Supreme Court, Climate Liability News explained.... from worsening allergies and asthma to the health risks and stress that come with hurricanes, wildfires and sea level rise threatening their homes.<... Children and infants are particularly vulnerable to the effects of climate change, as their bodies are still developing, they said. Their respiratory rates are also higher, so particles from fossil fuel burning and ozone take a greater toll. Increasing temperatures contribute to heat stroke risk for children, and can harm babies in utero. And warming temperatures can affect the spread of disease-carrying vectors like ticks, which can transmit Lyme disease, and mosquitoes, which can carry viruses like Zika.

"These are affecting children's health now, and certainly affecting their future," said Frederica Perera, a co-author of the letter and the director of the Center for Children's Environmental Health at Columbia University. "It's not an abstraction, and not some future threat. It is happening now."

Researchers are only beginning to understand the magnitude of health issues caused by climate change, said Renee Salas, another co-author of the letter and an emergency medicine physician at Massachusetts General Hospital. "We are just scratching the surface in our understanding of what those health burdens truly are," she said.

Salas said she hopes the lawsuit and letter "can continue to make climate change personal for people, because health truly is that common denominator that we all share."

Government's Climate Duties and Failures

In their lawsuit, Juliana vs. United States, the children and young adults accuse the federal government of violating their constitutional rights by failing to take action on climate change and continuing to promote and subsidize fossil fuels.

The lawsuit is based on the public trust doctrine, a legal concept that the government holds resources such as land, water or fisheries in trust for its citizens. Climate litigators contend that the government is a trustee of the atmosphere, too, and the young plaintiffs argue that the government abrogated its duty to limit fossil fuel use and cut greenhouse gas emissions, despite knowledge for decades that combustion of fossil fuels adds carbon dioxide to the atmosphere and changes the climate.

The federal government has fought the case at every turn and has tried repeatedly to get it dismissed, which led to this latest hearing.

On Tuesday, a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit heard the two sides' arguments, which the judges will now consider as they weigh whether the case will be allowed to move forward.

The children's lawyer, Julia Olson from Our Children's Trust, faced off against U.S. Assistant Attorney General Jeffrey Bossert Clark, a Trump administration appointee who represented the oil giant BP in lawsuits over the nation's largest oil spill and has repeatedly challenged the science of climate change. So far, the government's lawyers haven't contested the argument that climate change is harming the plaintiffs. Instead, they have said the federal government is not responsible and have focused on arguments that the court doesn't have the authority to order the political branches to act.

During the hearing, the judges asked tough questions of both sides. The Supreme Court had warned the appeals court to tread carefully in the highly unusual and potentially precedent-setting case, and the judges were doing so.

"You present compelling evidence that we have a real problem," Judge Andrew Hurwitz told Olson. "You present compelling evidence that we have inaction by the other two branches of government. It may even rise to the level of criminal neglect. The tough question for me, and I suspect for my colleagues, is do we get to act because of that."

"You're arguing for us to break new ground," the judge said.

Clark, arguing for the government, told the judges that a ruling for the plaintiffs would be "a dagger at the separation of powers."

Olson focused on the children's constitutional rights to life and personal security, saying future generations would look back and see that "government-sanctioned climate disruption was the constitutional issue of this century."

The plaintiffs are calling for sweeping changes in federal climate efforts and in government programs that subsidize or foster the development of fossil fuels. The trial, if allowed to proceed, could bring to light decades of federal policy on fossil fuels and climate change—including information previously unknown to the public.

'They Were Born Into This Problem'

The NEJM letter echoed an amicus brief filed in support of the young plaintiffs' lawsuit by nearly 80 physicians and researchers and 15 health organizations, including the American Academy of Pediatrics, the American Heart Association and the Infectious Diseases Society of America.

"There's a really robust body of scientific literature that supports each of these different kinds of health impacts that are already being observed and are projected to get worse and worse," said Shaun Goho, deputy director of the Emmett Environmental Law & Policy Clinic at Harvard Law School and one of the attorneys who filed the amicus brief.

"The Juliana generation is going to feel and suffer from those impacts in a way that's really different and more extreme than what any previous generation has felt," Goho said.

Two former U.S. surgeons general also weighed in, publishing an op-ed in The New York Times on Monday. Drs. Richard Carmona and David Satcher warned about several effects of climate change on health, from cognitive impairments due to malnutrition to lost school days and mental health concerns.

"The country has eliminated polio, reduced cancer death rates and raised life expectancy over time," they wrote. "Now, as the country faces the potentially catastrophic consequences of climate change, the country needs to understand the public health implications of a warming climate."

The former surgeons general, like the NEJM letter, pointed out that children inherited the changing climate that threatens their future.

"They were born into this problem; they did not create it," they wrote. "They are uniquely vulnerable: their developing bodies suffer disproportionately from climate change's most serious and deadly harms."

PUBLISHED UNDER:

ACTIVISM

REGULATION

CHILDREN'S CLIMATE LAWSUIT

LITIGATION

HEALTH

CLIMATE CHANGE

chevron takes lead in defense (state city lawsuits for damage agw) b/c exxon and others KNEW; using 1st amend defense cf drilled season 2

https://insideclimatenews.org/news/15012019/colorado-oil-gas-drilling-supreme-court-ruling-climate-change-public-health

gov polis goes for law change

https://www.desmogblog.com/2019/02/27/oil-manufacturers-accountability-project-trade-group-climate-suits

no lnx pix many lnx

Battling for Big Oil: Manufacturing Trade Group Leads Assault on Climate Suits

Read time: 12 mins

By Guest • Wednesday, February 27, 2019 - 11:09

By Karen Savage, Climate Liability News. Crossposted from Climate Liability News.

In its fight to stave off a wave of climate change-related lawsuits, the fossil fuel industry has found a vocal and unapologetic ally in the National Association of Manufacturers (NAM).The 123-year old trade group represents a wide range of the nation’s manufacturing companies, but it has frequently gone to bat for select segments of its membership during major liability battles. Currently, it is Big Oil’s staunchest defender.

The group has filed briefs defending oil companies in liability lawsuits, launched campaigns to discredit the communities filing them, and has worked to stop shareholders from pressing the oil companies to disclose climate risks. In these roles, NAM has put itself front and center in the effort to keep fossil fuel companies from being held liable for their role in climate change, and from paying for the related damages that will run in the hundreds of billions of dollars to communities across the country.

“Taxpayer resources should not be used for baseless lawsuits that are designed to enrich trial lawyers and grab headlines for politicians,” Lindsey de la Torre, executive director of NAM’s spinoff group, theManufacturers’ Accountability Project (MAP), said in a statement after Rhode Island filed one of the climate liability lawsuits last year. NAM launched MAP in 2017 as a response to the increasing number of climate liability suits.

Those suits, according to NAM, are a result of a coordinated campaign by activists “to disparage U.S. manufacturers with a focus on America’s largest energy manufacturers.”

MAP is now attempting to convince the American public — as well as judges who might hear those liability cases — that attempts to hold companies accountable for their role in climate change will harm business, said Richard Daynard, president of Northeastern University Law School’s Public Health Advocacy Institute and chair of its Tobacco Products Liability Project.

Manufacturers' Accountability Project logo

The Manufacturers' Accountability Project (MAP) was launched in November 2017 to push back against climate-change-related lawsuits affecting the manufacturing industry. ]

“This is essentially the PR front for the defendants in climate litigation,” Daynard said, adding that MAP is also working to discourage municipalities from filing future suits.

“This is all part of a long history of tort reformpropaganda,” he said, adding that NAM has worked for decades to reign in all types of liability litigation, including against the tobacco industry.

So perhaps it’s not surprising that NAM’s defense of fossil fuel companies has begun to look increasingly like its support for the tobacco industry in the 1980s. Similar tactics were used when tobacco companies were facing hundreds of lawsuits and were charged with racketeering by the federal government for deceiving the public about the catastrophic health hazards of smoking. NAM has even hired the same law firm that defended the tobacco industry to launch an assault on the climate liability lawsuits.

NAM recently named Phil Goldberg, a former coal lobbyist as special counsel for MAP. Goldberg is a managing partner in the Washington office of Shook, Hardy & Bacon, which gained notoriety for defending the tobacco industry, and is the co-chair of the firm’s public policy group.

Some say Shook, Hardy & Bacon went beyond defending tobacco companies, actively coordinating efforts by its clients to deliberately deceive the public about the ruinous health effects of smoking.

Judge Gladys Kessler, of the U.S. District Court for the District of Columbia, who found 10 tobacco companies guilty of violating racketeering laws in 2006, said the company’s lawyers “played an absolute central role in the creation and perpetuation” of the companies’ “fraudulent schemes,” calling it a “sad and disquieting chapter” in the legal profession.

Even before Goldberg was hired, MAP had launched an offensive against climate suits, filing friend-of-the-court briefs and intervening in a landmark constitutional suit brought by21 young people against the U.S. government. MAP has also submitted public records requests and coordinated a public relations campaign to discredit the municipalities behind the liability lawsuits.

Sharon Eubanks, a former Department of Justice lawyer who led the government’s racketeering case against the tobacco industry, said MAP is launching a direct attack on climate litigation suits.

“It’s very similar what they’re doing, only the tobacco industry at least didn’t come right out and say ‘We’re going to target these lawsuits directly,’” Eubanks said. “They did so indirectly. But NAM and MAP, they’re like, ‘We’re targeting the lawsuits.’”

Michael Barnett, a professor of management & global business at Rutgers Business School who has studied trade associations, said groups like NAM exist to defend the interests of their industry.

“It’s sort of an outsourced arm of those firms, rather than doing it all on their own, there’s strength in numbers,” Barnett said. “There’s some efficiency to having one centralized legal defense that attacks on behalf of the whole industry in addition to each of the individual firms taking on these issues.”

No Stranger to the Liability Battlefield

The addition of Goldberg to MAP’s legal team indicates a continuing commitment to defending NAM’s fossil fuel defendants. In addition to being the go-to law firm for tobacco companies, Shook, Hardy & Bacon has a long history with NAM, partnering as far back as 2007 to support firms facing product liability suits. The firm worked so closelywith the tobacco industry to attack the science showing the dangers of smoking it was named in several cases along with their clients, charging them with deceiving the public by fraudulently concealing the health effects of smoking. Oklahoma’s attorney general called Shook, Hardy & Bacon an “aider and abettor” of fraud in one suit.

“[The Department of Justice] considered suing them and making them defendants because they were so much a part of the RICO violations we alleged,” Eubanks said.

“They’re not even hiding from anything, they’re just saying ‘we want to influence what’s happening in these cases the best way that we can.’”

She said she’s seen no evidence that MAP’s tactics are illegal, but they are similar to some of what was alleged in the tobacco cases.

Goldberg did not respond to a request for comment. In a NAM press release he said, “The NAM and its Manufacturers’ Accountability Project are the tip of the spear in the fight against the wave of unfounded public nuisance lawsuits targeting America’s manufacturers.”

Goldberg said climate liability suits get in the way of finding real solutions and “are more about politics than addressing the global challenge of climate change.” He did not elaborate on what the solutions are or how municipalities will pay for the infrastructure needed to protect their residents, costs that are projected to run into the hundreds of billions of dollars nationwide.

A History of Advocating for Fossil Fuel Members

NAM, which was founded in 1895, describes itself as the largest manufacturing association in the United States. It doesn’t publicly disclose its membership list, but its board includes some of the oil and gas industry’s most powerful executives.

Exxon senior vice president and management committee member Neil Chapman joined NAM’s executive committee in 2015, taking over the position vacated by current Exxon chief executive Darren Woods. Chapman, who donated $10,000 to NAM’s political action committee during the 2018 election cycle, also serves as NAM’s southwest regional vice chair.

Chapman and Exxon did not respond to a request for comment.

For decades, the association has promoted climate denial, founding the Global Climate Coalition in 1989 and sharing offices until 1992 while the Global Climate Coalition and its members — primarily energy companies and automobile manufacturers — worked to cast doubt on what was fast becoming overwhelming scientific evidence that the burning of fossil fuels drives climate change. The goal was to change the public’s perception and cast doubt on climate science.

The Global Climate Coalition was disbanded in 2002 after several of its largest corporate members pulled out under public pressure to accept that climate change — and the projected catastrophic effects — was an undeniable global threat.

More recently, NAM’s focus has shifted from promoting climate deception to defending member companies from efforts to hold them accountable for years of deceiving the public and damaging the climate.

Along with the American Petroleum Institute and American Fuel & Petrochemical Manufacturers, NAM in 2015 joined the landmark youth climate lawsuit Juliana v. United States as an intervenor on the side of the federal government.

Calling the suit a “direct threat to businesses,” the trade associations said the “significant reduction in [greenhouse gas] emissions would cause a significant negative effect on [their] members by constraining the sale of the product they have specialized in developing and selling.”When the court asked intervenors to explain their views on climate change, NAM quickly backed out.

When the liability lawsuits began — and now total more than a dozen from communities across the country and one state (Rhode Island) — NAM responded by launching MAP to “set the record straight and highlight foundations and other activists who have sought to undermine and weaken manufacturing in the United States” by engaging in climate change-related litigation.

MAP came out swinging, claiming that then-New York attorney general Eric Schneiderman’s use of the Martin Act to investigate Exxon for possible climate change-related fraud was “politically motivated.” It demanded New York Mayor Bill de Blasio apologize to New Yorkers for using an outside firm to file its suit against five major oil companies and launched a campaign to highlight what it called de Blasio’s “politically-motivated attacks on manufacturers.”

Eubanks said that rhetoric doesn’t add up.

“Lawsuits are to enforce the law, to ensure that people are following the law and it takes you out of a political process and puts you before a neutral person, a judge,” she said, adding that Shook, Hardy & Bacon also does a good bit of political lobbying.

“They say, ‘We think these matters should be handled by legislation, not litigation, and by regulations that will come out of any statutes that are enacted,” she said. “Then they fight real hard to make sure there are no statutes that come down the pike because regulations come out of regulatory authority, so it sounds real good, but that’s wholly inconsistent with their approach.”

NAM and MAP have made a big deal out of the potential for future RICO charges against the fossil fuel industry— the same racketeering laws that ultimately ensnared the tobacco industry — and contend that a conspiracy is being waged on the other side by a “group of politically motivated activists” who are “trying to take down America’s energy manufacturers.”

“Right now, there are groups of trial lawyers slinking around the country tantalizing elected officials in cities and states with unrealistic promises of jackpot justice if they will only agree to sue energy manufacturers over climate change,” said NAM president and chief executive Jay Timmons in NAM’s State of Manufacturing Address last week in Houston. “These lawyers — they want to get rich at the expense of manufacturing workers.”

Daynard said this type of messaging is used in an effort to control the narrative around — and media coverage of — climate litigation.

“They have this notion that if they can get continue to get news coverage and establish themselves, they can make sure when cases are filed journalists will look, go to them and they can then get in some comment on how this is all worthless crazy stuff stirred up by ‘greedy lawyers’ or ‘ideologically driven NGO’s,’” Daynard said.

To try and substantiate its view that litigation is part of a vast conspiracy — and in what some say is an attempt to have a chilling effect on municipalities that file lawsuits — MAP has also submitted extensive public record requests to plaintiffs in the suits, seeking documents and communication between the municipalities and their attorneys, prior records requests that include those attorneys, certain communication regarding the defendant companies and communication between the municipalities and billionaire Tom Steyer, founder of NextGen, a progressive organization working to stem the risks of climate change for future generations.

When Rhode Island Attorney General Peter Kilmartin filed the first state-level suit last July, MAP denounced it.

Eubanks said ensuring manufacturers abide by state law is exactly what attorneys general should do.

“We have consumer protection statutes, we have consumer protection agencies, that’s part of what makes this country great,” Eubanks said. “You can’t just come in and roll over people with deceptive and unfair methods of competition, you can’t just lie about things without consequences and we have organizations to protect that. That’s what I find so alarming about this — the whole idea that there’s something wrong with enforcing the law.”

NAM did not respond to a request for comment. De la Torre could not be reached for comment.

Perhaps NAM’s biggest attack on liability suits thus far has been its accusations against several California municipalities.

Not long after the suits were filed, Exxon went on the offensive,accusing plaintiffs of failing to disclose climate risks to their bond investors.

To try to bolster that allegation, NAM — along with the industry ally Competitive Enterprise Institute — asked the Securities and Exchange Commission to investigate whether several cities and counties that filed climate suits misled investors when they stated in bond offerings that they couldn’t predict the impacts of climate change.

A report by the former chief of the Securities and Exchange Commission’s municipal bonds division later found the municipalities did not mislead potential investors.

In another instance, NAM partnered with the Chamber of Commerce to back Exxon, filing a friend-of-the-court brief in the oil giant’s quest to stop investigations by the attorneys general of Massachusetts and New York.

New York has since filed a lawsuit against Exxon based on that investigation, alleging the oil giant for years deceived investors by deliberately downplaying the climate risks to its business and long-term financial health. The Supreme Court recently ruled against Exxon’s attempt to stop Massachusetts’ investigation, which now continues.

This is the first in a series of articles on the trade group coordinating opposition to climate liability suits.

ct loss

1/19

https://www.ecowatch.com/colorado-youth-fracking-case-2626070704.html

A Surge of Climate Lawsuits Targets Human Rights, Damage from Fossil Fuels

Cities, states and the fishing industry want courts to hold fossil fuel companies accountable for global warming. Others argue government inaction violates rights.

By Nicholas Kusnetz

Follow @nkus

Jan 4, 2019

Rhode Island in 2018 became the first state to sue the fossil fuel industry over climate change, citing the growing risks from sea level rise and extreme weather. Credit: John Greim/LightRocket via Getty Images]

A climate denier is in the White House, pushing policies that will boost emissions. Congress is doing nothing to stop him. So citizens and local governments who are facing the impacts of rising seas, worsening heat waves and extreme weather are increasingly looking to the courts for help.

[1]

The past year saw a surge in new lawsuits filed against fossil fuel companies, and major developments in cases pressing governments for action in the United States and abroad.And while the plaintiffs haven't secured any substantial victories in U.S. courts, they may be scoring a different victory by drawing attention to the inaction of Congress and the Executive Branch, said Michael Gerrard, faculty director at the Sabin Center for Climate Change Law at Columbia Law School.

"Lawsuits, even if unsuccessful, can help shape public opinion," he said. "Mr. Scopes lost the monkey trial, but it led to a lot more awareness about the issue of teaching evolution."

In Colombia [2] and the Netherlands [3], citizens won rulings in 2018 ordering their governments to cut emissions and protect forests. By framing climate change in terms of human rights, those cases and similar ones filed in the U.S. and other countries are transforming how the courts address the issue, said Patrick Parenteau, senior counsel in the Environmental and Natural Resources Law Clinic at Vermont Law School and an informal adviser to some of the plaintiffs' lawyers.

"It's pushing the boundaries of law everywhere," he said. "Climate change is changing the law."

There are currently a couple of dozen significant lawsuits around the worldthat are asking courts to order actions by governments or the fossil fuel industry in response to climate change. Here's a round-up of the various approaches.

Climate Liability

Whatbegan with a handful of California cities and counties in 2017 spread across the country this past year, as New York City [5], Baltimore [6], Rhode Island [7] and local governments in Colorado [8] and Washington State [9] sued fossil fuel companies.

The plaintiffs are seeking compensation to help pay the costs of protecting residents from rising seas, worsening wildfires, extreme heat and other effects of climate change. Two law firms are arguing most of these cases. They allege that energy companies knew about the dangers associated with their products, but lobbied against capping emissions anyway while sowing doubt about climate science.

In November, the West Coast's largest commercial fishing association filed a similar suit[10]. Algal blooms tied to warming waters have led to closures of the crab fishery in recent years, and the plaintiffs are seeking compensation from the fossil fuel industry for the associated losses.

The Pacific Coast Federation of Fishermen's Associations sued several fossil fuel companies, seeking damages on behalf of crab fishers and local communities hurt by climate change in California and Oregon. Credit: Justin Sullivan/Getty Images]

Parenteau said it may be harder for energy companies to dismiss the case as a political stunt, a tack they've taken against the lawsuits filed by local governments.

"The 'industry versus industry' does put another spin on it," Parenteau said. "This is real cold dollars and sense."

The only substantive rulings have been dismissals of cases brought by San Francisco and Oakland [11]—whose cases were joined—and New York City [12]. The judges, both in federal district courts, wrote that it was ultimately up to Congress to regulate emissions, and that climate change, as a global issue, would be better addressed by diplomats and the Executive Branch than U.S. courts. The cities have appealed the rulings, and those appeals are some of the cases to watch this year.

Despite limited success so far, these liability lawsuits may continue to spread. At the annual international climate negotiations in Poland, the foreign minister of Vanuatu—a small island nation at risk of losing much of its territory to rising seas—said his country is forming a coalition to explore legal action [13] against fossil fuel companies and governments that have supported them.

Gerrard also said that worsening natural disasters tied to climate change could prompt new lawsuits.

"It'll be interesting to see whether anybody brings climate claims in any of the lawsuits that will arise from the California wildfires or any of the multiple hurricanes we've been having every year," he said. "There might be claims that a company or a government agency should have anticipated these extreme events in designing or constructing buildings or other infrastructure."

Constitutional and Human Rights

The lawsuits filed against fossil fuel companies target one of the world's most powerful and lucrative industries. But a separate class of cases is seeking something much broader: They're arguing that governments have a legal obligation to protect their citizens from climate change.

A group of nearly 900Dutch citizens and a nonprofit were among the first to make the claim, arguing that their government was failing to meet its own goals for emissions cuts and violating their rights in the process. In October, a Dutch appeals court upheld a lower court ruling [3] ordering the government to cut emissions 25 percent below 1990 levels by 2020. The government said it will appeal the most recent decision, even as it works to meet the emissions goal.

In the U.S., a group of children and young adults who are suing the federal government were poised to go to trial in October in a similar case. The plaintiffs are trying to establish a Constitutional right to a stable climate and are seeking a court order that the government come up with a plan to phase out fossil fuels. Simply holding a trial would be a major victory for the children, but the Supreme Court put the trial on hold less than two weeks before the scheduled opening arguments. The case is now in the hands of appeals court judges [14] with the Ninth Circuit, who will decide whether to allow a trial.

"This is the blockbuster for the U.S.," said Melissa Scanlan, director of the New Economy Law Center at Vermont Law School. "It's the first case in the U.S. that would recognize that there's a protected Constitutional right to a climate capable of supporting human life. We never thought we needed that before."

Twenty-one children and young adults are suing the federal government to force action on climate change. Their case had been scheduled for trial in October but is on hold while the Ninth Circuit Court considers a request by the Trump administration to throw the case out. Credit: Robin Loznak]

Similar cases have been filed in a few state courts, too. All face long odds.

"There are very, very few judges that would be willing to push these climate issues in court," Parenteau said. "But all roads lead to the Supreme Court, and that's where it would die. There's no chance."

In Colombia, however, a nonprofit won a court order in April [2] directing the government to develop a plan for protecting the nation's Amazon forest, which saw deforestation rates rise in recent years and, along with areas in neighboring countries, is one of the planet's largest stores of carbon.

Human rights cases are pending in Norway, Canada, Belgium and other countries. In the Philippines, the nation's Commission on Human Rights concluded an investigation [15] into whether fossil fuel companies played a role in violating the rights of the country's citizens by knowingly contributing to climate change. The Commission will issue a report this year.

Securities Fraud

In October, New York Attorney General Barbara Underwood capped a three-year investigation into ExxonMobil by suing the company in state court [16], accusing it of misrepresented the financial risks that climate change poses to its business. It may be legal to lie to the public, the case effectively argues, but not to shareholders.

The lawsuit was a significant development because, unlike most of the local and state claims, it relies on a state law that gives prosecutors great powers to go after companies for financial fraud. A New York judge set a trial date for October 2019.

It wasn't the first case to charge Exxon with securities fraud,. In 2016, a shareholder filed a class action suit against the company in a Texas federal court, saying corporate officers had made false and misleading statements about how the company was assessing climate risks, artificially inflating the company's stock price. That lawsuit cleared a hurdle in August when a federal judge denied a motion [17] by Exxon to dismiss the case.

Tried and True Tactics Remain

As cities, states and citizens press the courts to address climate change with novel legal arguments, dozens of more conventional lawsuits continue to churn too, challenging oil pipelines and coal facilities for their greenhouse gas emissions and the Trump administration as it rolls back the nation's climate regulations.

Gerrard noted that it is these traditional legal challenges that, so far, have had a greater effect on the nation's greenhouse gas emissions. Rules limiting methane emissions by the oil and gas industry, for example, remain in place for the time being[18] despite efforts by the Trump administration to repeal them.

Legal experts say the unconventional cases, whether cities suing oil companies, children suing the government or a state suing Exxon for fraud, may face skepticism from judges, and it's far too early to say what effect they will have.

"Lots is happening, lots of boom and bang," Parenteau said. "But the carbon keeps going up and up. There you have it."

Published Under:

Business and Accountability [19]

Regulation [20]

Extreme Weather [21]

Litigation [22]

Climate Change [23]

Children's Climate Lawsuit [24]

Exxon Climate [25]

2018 Year in Review [1]

https://insideclimatenews.org/news/26102018/children-climate-change-lawsuit-trial-delayed-supreme-court-kavanaugh

A federal judge in Oregon has delayed a lawsuit brought by 21 children and young adults to force government action on climate change, pending a decision by the Supreme Court on whether to dismiss the case before trial. Opening arguments had been set for Monday.

The government has repeatedly tried to halt the case. Last week, the Supreme Court agreed to a temporary stay while it considers the Justice Department's argument that a trial would cause the government "irreparable harm." The decision to delay the case at this early stage was highly unusual.

The plaintiffs and their lawyers say the government is trying to deprive them of their right to a fair hearing.

"Since the early days of the Republic, our judiciary has grown to be the last line of defense against governance that threatens the public good and destroys the lives of our people," Julia Olson, co-counsel for the plaintiffs, said in a statement. "These young people deserve that chance to present their case against those who govern and let the light fall where it may."

If successful, the lawsuit could result in a court order that the federal government develop and implement a plan to cut greenhouse gas emissions. If the plaintiffs ultimately lose, a trial would still present a public forum on climate change and the grave risks it poses to the nation. A trial could also force the Trump administration into the embarrassing position of publicly admitting the facts about climate change while arguing that it need not address the problem.

The government's lawyers haven't contested the children's central claims—that climate change is real and is causing them harm. Instead, the lawyers have argued that the federal government is not responsible and that the court has no place ordering political branches what to do.

The Supreme Court is now considering those questions. In July, the court denied an earlier attempt by government lawyers to halt the case. It's unclear why the court changed its position now.

David Bookbinder, chief counsel for the libertarian Niskanen Center, which filed a brief supporting the youths' case, said the only thing that has changed is the replacement of Justice Anthony Kennedy, who retired, with Justice Brett Kavanaugh, President Donald Trump's controversial pick whose record as a federal judge includes ruling against some environmental regulations.

"They're willing to step in and look at this earlier than the court normally would because it's a climate case," he said. One of the few other cases in which justices have issued such a ruling at this stage, he said, was when they halted implementation of President Barack Obama's proposal to limit emissions from the electricity sector. "Climate is just different."

Like Brown v. Board of Education with school integration or Obergefell v. Hodges, which established a right to marriage for same-sex couples, the case is pushing a novel claim for constitutional rights, legal experts say. It will also test core questions about the separations of powers. The plaintiffs argue that, as in Brown, the Constitution's checks and balances require the courts to step in because the political branches are failing citizens, in this case by neglecting to protect them from climate harm. The government has argued that existing laws and environmental regulations take precedence and any action by the court would overstep its authority.

"For three years, my co-plaintiffs and I have been waiting for our voices to be heard in court," Hazel V., a 14-year-old plaintiff in the case, said in a statement. "But the U.S. government is doing everything it can to silence us, all while we watch it continue to make the climate crisis worse.

https://www.ecowatch.com/youth-climate-lawsuit-oregon-trump-2613558303.html

Trump Team Again Asks SCOTUS to Stop Youth Climate Case as Trial Nears

Once again, the Trump administration has asked the U.S. Supreme Court to halt a groundbreaking constitutional climate lawsuit brought by 21 youth plaintiffs, just over a week before the case heads to trial in Eugene, Oregon.

On Thursday, the Department of Justice filed a second "writ of mandamus" petition— an uncommonly used legal maneuver—and application for stay with the high court.

Department of Justice attorneys described the "impending harm" to the defendants as follows:

"Absent relief from this Court, the government imminently will be forced to participate in a 50-day trial that would violate bedrock requirements for agency decisionmaking and judicial review imposed by the [Administrative Procedure Act] and the separation of powers."

In July, the Supreme Court ruled that the Trump administration's motion to dismiss the case was "premature." However, that order was issued before Justice Brett Kavanaugh's confirmation.

*Juliana v. United States*, originally filed in 2015 against the Obama administration, targets the government for creating policies that encouraged climate change, and for violating the country's youngest citizens their constitutional rights to life, liberty and property, as well as failing to protect essential public trust resources. The Trump administration inherited the case and both administrations have tried to throw out it out.

"We are 6 business days from a trial we have been preparing for for three years," Vic Barrett, a 19-year-old plaintiff from White Plains, New York, said in a press release in response to the government's petition. "The lengths my own government is going to to get this case thrown out and avoid trial is absurd and offensive."

A federal judge on Monday issued another ruling that preserved the trial's start date on Oct. 29, unless the Supreme Court or the San Francisco-based Ninth Circuit intervenes.

In the 62-page opinion, U.S. District Judge Ann Aiken largely rejected the government's arguments to stop the case but granted a motion to dismiss President Donald Trump as a defendant.

On Friday, government attorneys filed a third writ of mandamus petition to the Ninth Circuit Court of Appeals to stay district court proceedings. The Ninth Circuit has not yet issued a decision on those filings, according to Our Children's Trust, the non-profit group supporting the youth plaintiffs. Judges with the Ninth Circuit denied the first two petitions, saying the petitions were not justified.

"If the United States Supreme Court allows the federal branch of government to act in this manner, stops this case and denies us our right as young people to be heard in a court of law, the institutional legitimacy of this highest court will be harmed," Aji Piper, an 18-year-old plaintiff from Seattle, added in the press release. "At this moment in our country's history when we are so divided, it is more important than ever that the judicial branch of our government maintains the trust and respect of the American public. There is nothing great about a country that abandons its children and future generations."

Washington's Climate Action Wasn't Fast Enough

The Washington lawsuit followed another that had been filed there in 2014 by a group of eight young people, including some of the same plaintiffs, who sought to force the state to require carbon reductions.

The following year, the King County Superior Court ruled that the state had a "mandatory duty" to reduce emissions. That ruling led to the state's Clean Air Rule. In March of this year, however, another court ruled that part of the rule was invalid. The state has appealed.

Washington state's leaders have supported climate action in recent years. In 2015, then-Gov. Jay Inslee committed the state to an international agreement to reduce greenhouse gas emissions by up to 95 percent below 1990 levels by 2050. In 2017, he joined with other governors in the multi-state U.S. Climate Alliance, a coalition that aims to meet the goals of the 2015 Paris Climate Agreement.

But the young plaintiffs said the state wasn't moving fast enough, prompting the latest suit, filed this February.

Judge Urges Young Plaintiffs to Keep Fighting

In his ruling to dismiss the case, Scott urged the young plaintiffs to keep pressure on state lawmakers, writing that the young advocates "can (and must) continue to help solve the problems related to climate change." For example, he wrote in his order, they could urge state lawmakers to enact policies such as a carbon tax and measures that support development of clean energy.

The children's attorney, Andrea Rodgers, noted the climate change impacts already being felt this summer in a statement issued after the ruling: "On a day when the sun in Seattle is shrouded in smoke from wildfires, the youth plaintiffs are devastated that Judge Scott declined to give them an opportunity to present their constitutional claims in a court of law. By deferring to the Executive and Legislative branches of government that have affirmatively placed these plaintiffs in harm's way, without an appropriate legal analysis, the court has unfortunately chosen not to engage to protect the rights of these plaintiffs, to their detriment."

The young people in the case also expressed disappointment but said they hope to win on appeal.

"My rights as a Native American person are being taken away because of climate change," Kailani, a 13-year-old plaintiff from Spokane, wrote in a statement. "Camas, huckleberries, salmon, and other traditional foods are disappearing and this is because of climate change that the government continues to contribute to. How long are people going to ignore that climate change is a real threat to my life and my culture?"

PUBLISHED UNDER:

ACTIVISM

CHILDREN'S CLIMATE LAWSUIT

CLIMATE CHANGE

https://www.ecowatch.com/supreme-court-youth-climate-case-2591440617.html

Supreme Court Rules Trump Administration Can’t Stop Youth Climate Case

In a glimmer of hope for climate change litigation, the Supreme Court ruled against the Trump administration's attempt to block a ground-breaking lawsuit brought by 21 young people against the U.S. government for crafting policies that support climate-changing fossil fuels, The Huffington Post reported.

The high court ruled that the administration's motion to dismiss the case was "premature."

"This decision should give young people courage and hope that their third branch of government, all the way up to the Supreme Court, has given them the greenlight to go to trial in this critical case on their inalienable rights," Our Children's Trust Executive Director and Chief Legal Counsel Julia Olsen said in a statement reported by The Huffington Post.

Our Children's Trust is the non-profit that helped the young people behind the case file the suit.

The ruling comes as historic cases around the country are determining what role the courts can play in responding to the climate crisis.

In the past two months, federal judges in New York and San Francisco have dismissed cases brought by cities suing oil companies for the cost of adapting to climate change.

In dismissing the cities' cases, the judges argued that the executive and legislative branches should determine climate policy, not the courts.

The children's lawsuit, *Juliana v. United States*, is different from the cities' suits in that it targets the government, not oil companies, for creating policies that encouraged climate change.

However, the government's lawyers have argued that it goes beyond the scope of the courts.

The administration argued that the trial judge who had permitted the case to proceed had acknowledged "a never-before-recognized fundamental right to a particular climate system that lacks any support in the Constitution, this court's precedents, or this nation's history and tradition," Bloomberg reported.

The young people's lawyers, in contrast, say the changes to the climate violate rights that are enshrined in the Constitution, since those changes "threaten the very foundation of life, including the personal security, liberties, and property," according to The Huffington Post.

The Supreme Court did caution in its ruling that the breadth of the lawsuit was "striking" and that the question of whether the matters it raised belonged in the courts "presents substantial grounds for difference of opinion," Bloomberg reported. The court also urged the trial judge to respond promptly to other government attempts to halt the case's progress.

As of now, though, the Supreme Court's ruling means the trial will still begin in U.S. District Court on October 29, 2018, something for which the young plaintiffs are grateful.

"The constitutional rights of my fellow plaintiffs and I are at stake in this case, and I am glad that the Supreme Court of the United States agrees that those rights should be evaluated at trial," 19-year-old plaintiff Victoria B. said in an Our Children's Trust press release. "This lawsuit becomes more urgent every day as climate change increasingly harms us. I have reaffirmed confidence now that all levels of the federal judiciary have ruled in our favor that there should be no more delay in getting to our trial."

The case was first filed in Oregon in 2015. The Obama administration moved to dismiss it in 2016, and the decision of an Oregon U.S. District Court judge to deny that motion is one the Trump administration continued to challenge, leading to Monday's Supreme Court ruling, Pacific Standard reported.

https://insideclimatenews.org/news/11072018/joseph-stiglitz-kids-climate-change-lawsuit-global-warming-costs-economic-impact

spreading, winning

https://www.ecowatch.com/climate-change-lawsuits-2561769770.html

https://www.ecowatch.com/climate-change-lawsuit-2547843097.html

Two Major Climate Change Lawsuits Move Forward

By Ken Kimmell

A major front in the climate change debate has moved to the courtroom, as I've previously discussed. Last week, plaintiffs in two separate cases won significant procedural victories—one against major fossil fuel companies, and a second against the Trump administration. Here are the latest developments and their implications.

Bay Area vs. Big Oil

In this suit, The People of the State of California v. BP et al.,the cities of San Francisco and Oakland sued five major oil companies (BP, ExxonMobil, Chevron, Conoco Phillips and Shell), charging that these companies created a public nuisance by extracting and selling oil, coal and gas while misleading the public about the harms that these products cause.

The two cities filed in state court and under state law. This was an important strategic choice, as the U.S. Supreme Court and the Ninth Circuit Court of Appeals (which covers California) had dismissed prior cases brought in federal court, holding that congress enacted the Clean Air Act to comprehensively address the emission of greenhouse gases, and that therefore there was no role for federal lawsuits of this kind.

Citing the precedent of these earlier rulings, the defendant oil companies transferred the cities' cases to federal court, and argued that the cities' claims were preempted by federal law. In response, the cities claimed that they had a right to file in state court and that their claims under state law were not preempted by federal law, and they asked the judge to send the cases back to state court.

A federal district court judge issued a decision that neither side argued for. The court decided in the oil companies' favor that the case was properly in federal court, reasoning—with some logic—that climate change is an international problem, that state courts might apply inconsistent standards if allowed to adjudicate these cases, and that only the federal court could apply a uniform standard.

But, the court went on to find that the two earlier cases which had dismissed federal court suits did not apply to this case. The court found that while the Clean Air Act addresses the emissions from fossil fuel combustion, the San Francisco/Oakland case was not about emissions of pollutants, but rather an alleged scheme to sell a product through deception. The court reasoned—again with some logic—that the Clean Air Act offered no remedy for that conduct, and therefore did not preempt this lawsuit.

This part of the ruling was a major win for the plaintiffs, as it seems to take away the key defense of preemption that the oil companies seemed to be counting on.

On top of this, the court also ordered the parties to participate in a five-hour "climate science" tutorial for the court, to be held on Mar. 21. The judge ordered the parties to "trace the history of scientific study of climate change, beginning with scientific inquiry into the formation and melting of the ice ages, periods of historic cooling and warming, smog, ozone, nuclear winter, volcanoes and global warming." And further, to inform the court of "the best science now available on global warming, glacier melt, sea rise and coastal flooding."

This is fascinating and highly unusual. As anyone who has seen a trial on television or in the movies knows, courts don't conduct tutorials; they oversee trials, in which lawyers present the testimony of witnesses under oath and each side gets to examine and cross examine. The sheer novelty of this procedure is a good sign for the plaintiffs. Why would the judge invest time and energy to learn about climate science unless he thought the plaintiffs' legal claims might rest on a durable foundation? Also, the fact that the court asked for a climate science timeline suggests the court is honing in on some key questions: what did the fossil fuel companies know about climate change, when did they know it, and how did their public statements square with the scientific consensus at the time?

All eyes will be on this climate science tutorial, which will presumably be open to the public. To my knowledge, this is the first time climate science will be presented to a court in this fashion, and it offers an excellent opportunity to highlight the longstanding and well-supported scientific consensus.

It is too early to confidently predict what lies ahead but, on the basis of the judge's initial opinion, one can say this: the courtroom door is open now on these issues as it never has been before.

Kids sue to protect themselves and future generations.

In this case, *Juliana v. the United States*, a group of kids are suing the Trump administration for failing to protect them against the harms of climate change. I wrote about the novelty of this case last fall, and its early success when a federal district court judge in Oregon ordered the case to trial, rejecting all the Trump administration's procedural defenses.

Since that time, the Trump administration asked the Ninth Circuit Court of Appeal to dismiss the case. This was an unusual move because, ordinarily, a party to a lawsuit cannot appeal until the trial court has issued a final judgment. In this case, however, the district court had not done so. Predictably, the court of appeals ruled that the appeal was therefore premature, and sent the case back to the district court.

(Full disclosure: UCS joined a friend of the court brief on this issue, ably authored by Earthjustice attorneys).

The case was originally set for trial in February, 2018, but the Trump administration's appeal delayed that. Presumably, the next step will be for the court to set another trial date.

This is not good news for the Trump administration. At a minimum, a trial on this will be a public relations nightmare in which an appealing group of kids, represented by experienced attorneys, will have the opportunity to question Trump administration officials in open court. They will no doubt ask questions that the administration will find extremely difficult to answer, such as: Why has the Trump administration sought to withdraw from the Paris agreement, rolled back regulations to lower greenhouse gas emissions, and promoted subsidies for coal? Does the Trump administration not accept climate science? Does it not care about the harm of runaway climate change?

Further down the line, if the plaintiffs are successful in district court and if the court of appeals or the supreme court affirms the ruling (all very big "ifs," of course), the Trump administration faces the prospect of being forced under court order to develop and implement a plan to address climate change.

Chickens coming home to roost.

...

win

3/18

https://www.desmogblog.com/2018/03/08/see-you-court-kids-climate-lawsuit-moves-forward-after-judge-denies-trump

https://www.ecowatch.com/climate-lawsuit-washington-youth-2536683798.html

13 kids wa state

...

In their suit (pdf), filed Friday in King County Superior Court, the plaintiffs, aged seven to 17, say the state, Gov. Jay Inslee, and several state agencies have created and propped up fossil fuel-based energy and transportation systems, thereby fueling greenhouse gas (GHG) emissions and the climate crisis. In so doing, they have created "unconstitutional conditions"—depriving the young people of their rights to a healthful and pleasant environment, and their rights to life, liberty and property.

The climate-fueling actions, the suit says, have put the young people "in a position of danger with deliberate indifference to their safety in a manner that shocks the conscience."

The state's current GHG reduction limits "are not consistent with what the scientific consensus says is needed to stabilize the climate system," the suit states. Rather than take action to address climate change, the suit says the state and the agencies "have acted with shocking deliberate indifference and abdication of duty to address this crisis." That's despite fact that the defendants were aware of the impacts of the climate crisis "[s]ince at least the late 1980s, well before these plaintiffs were born."

The youths were forced to bring the suit "because the fossil fuel-based energy and transportation system created, supported, and operated by the defendants, and the systematic, affirmative aggregate actions which make up and support that system, severely endangers plaintiffs and their ability to grow to adulthood safely and enjoy the rights, benefits, and privileges of past generations of Washingtonians due to the resulting climate change."

The suit lists the specific dangers the climate crisis is causing the plaintiffs.

For 17-year-old James, for example, a member of the Quinault Indian Nation, his coastal village of Taholah has to be relocated because of sea level rise. "This critical loss of his place-based heritage, a heritage that dates back to time immemorial, is irreplaceable, and permanent," the suit states. The traditional clamming activities he takes part in are also becoming limited because of climate change impacts including algal blooms, ocean acidification, and warming waters. Increasingly severe storms have also had an impact on his family, causing power outages. All these impacts, the suit says, are causing mental and emotional stress, and without meaningful action to address the climate crisis, the impacts are set to worsen.

A plan for state-level energy and transportation systems that support a healthy climate system is feasible, the suit says:

"A zero-CO2 energy and transportation system for Washington state can be achieved by 2050 without acquiring carbon credits from other states or countries. In other words, actual physical emissions of CO2 from fossil fuels can be eliminated with technologies that are now available or under development.

Experts have already concluded the feasibility of, and prepared a roadmap for, the transition of all of Washington's energy use (for electricity, transportation, heating/cooling, and industry) to a 100 percent renewable energy system by 2050. In addition to the direct benefits of avoiding a destabilized climate system, this transition will reduce air pollution and save lives and costs associated with air pollution.

Seventeen-year-old plaintiff Aji Piper, for one, is optimistic.

"I feel hopeful because of this lawsuit, like grass tips emerging from thawing snow. This is my state government's chance to rise up and take responsibility for their actions. This is also a chance for my government to use real science in the policy they create. This lawsuit gives the Washington state government a chance to take the lead and commit to the citizens it serves and the lives it must protect," he said in a statement.

The lawsuit is being supported by the Oregon-based nonprofit Our Children's Trust, which has other similar state-level legal actions underway as well as the landmark *Juliana v. United States*, in which Aji Piper is also a plaintiff.

A trial date for the new lawsuit, Aji P. v. State of Washington, is set for Feb. 19, 2019.

Reposted with permission from our media associate Common Dreams.

North Carolina Youth File Climate Petition to Protect Their Futures

Tuesday, three teenagers filed a climate change petition for rulemaking with the North Carolina Environmental Management Commission. The petition calls on the commission to reduce North Carolina's CO2 emissions to zero by 2050, in accordance with the best available science.

Youth petitioners argue that the commission has statutory, public trust and constitutional obligations to protect North Carolina's essential natural resources, including the atmosphere, for present and future generations. As detailed in the petition, the proposed rule could create jobs, reduce energy costs and avoid billions in climate damages.

With the support of Our Children's Trust, Alliance for Climate Education and represented by Duke's Environmental Law & Policy Clinic, the petitioners are the latest group of young people from across the country to file legal action seeking science-based action by governments to secure a safe climate and healthy future.

"With a family history of lung disease and a love for hiking, I have personally experienced both the negative health impacts of pollution and the steady destruction of our most important natural resources, our national and state parks, due to climate change and higher CO2 emissions," Arya Pontula, 17-year-old petitioner and Alliance for Climate Education fellow from Raleigh, said.

"I hope this petition pushes our state to take concrete steps to reduce CO2 emissions, thus ensuring cleaner air for all generations. The bottom line is that, when it comes to our health, we have no other choice but to set our differences aside and work towards a common goal for cleaner, breathable air and preservation of our natural resources," Pontula added.

"North Carolina's laws declare that the Environmental Management Commission must protect water and air resources for the benefit of all, not shield polluters through delaying tactics," Ryke Longest, Duke Environmental Law and Policy Clinic director, said. "It is long past time for the commission to act on the best available science and commit to reducing carbon dioxide emissions to zero in time for the climate to stabilize."

The North Carolina petition is one of many related legal actions supported by Our Children's Trust and brought by youth in several states and countries, including Juliana v. United States, seeking science-based action by governments to secure a safe climate and healthy atmosphere for present and future generations.

https://www.ecowatch.com/youth-climate-intervenors-2500282730.html

enbridge minnesota

pruitt epa changes rules of settle lawsuits? 10/17

https://www.ecowatch.com/portugal-fires-lawsuit-kids-2498506245.html

https://www.ecowatch.com/portugal-kids-climate-lawsuit-2489744489.html

EPA SAB nom boasted beat OCT in montana?

https://www.ecowatch.com/james-hansen-climate-lawsuit-2461920577.html

2/5/18

https://www.ecowatch.com/our-childrens-trust-trial-date-2450252842.html

===

https://www.ecowatch.com/youth-climate-lawsuit-trial-2437891411.html

no link

Kids Climate Lawsuit Heads to Trial, Judge Denies Trump Administration's Appeal

U.S. District Court Judge Ann Aiken issued an order Thursday denying motions filed by the Trump administration and the fossil fuel industry that sought to appeal her Nov. 10, 2016 order in Juliana v. United States to the Ninth Circuit Court of Appeals.

The order follows the Trump administration's remarkable Tuesday night filing of a notice giving Judge Aiken a deadline of June 9 to issue her order.

In that notice, the Department of Justice threatened, "In the absence of such resolution by this Court, the United States will seek … review and relief in the Court of Appeals." The Trump administration is alluding to an intention to seek a writ of mandamus, an extraordinary remedy that is rarely granted, from the higher court.

"We are on our way to trial!" said Julia Olson, co-lead counsel for plaintiffs and executive director of Our Children's Trust. "With industry walking away from the case and the Trump administration's effort at procedural delay firmly rejected, we can focus on the merits of these youths' constitutional claims."

From Judge Aiken's June 8 order:

"Defendants' threat to run directly to the Ninth Circuit if this Court does not abide by a unilaterally imposed 'deadline' is another matter … belief that it is legally entitled to an immediate ruling on a motion it submitted three months ago is rather ironic given that it waited four months to file the request for interlocutory certification in the first place."

Judge Aiken's order was an adoption of the May 1 findings and recommendation issued by Magistrate Judge Thomas Coffin, who is overseeing the pretrial and discovery portion of the case. Judge Coffin has ruled that an interlocutory appeal "would put the cart before the horse, and thus fail to satisfy the standards for interlocutory appeal."

"The more evidence we gather for our case, the more I realize how decisively we can win at trial," said 20-year-old Alex Loznak of Roseburg, Oregon, one of 21 youth plaintiffs. "It's no wonder the Trump administration wants to avoid the trial by seeking an unwarranted, premature appeal. Today's ruling brings us one step closer to trial and to winning our lawsuit."

Justice Anthony Kennedy, writing for the majority of the Supreme Court, has explained that mandamus is a "drastic and extraordinary remedy" reserved for "only exceptional circumstances." Cheney v. U.S. Dist. Court for D.C., 542 U.S. 367, 380 (2004).

Last month, motions were filed by three fossil fuel industryintervenor-defendants: the National Association of Manufacturers, the American Petroleum Institute, and the American Fuel & and Petrochemical Manufacturers, requesting the court's permission to withdraw from the litigation. For any defendant to leave the litigation, U.S. Magistrate Judge Thomas Coffin must grant permission. That matter is still pending.

Juliana v. United States was brought by 21 young plaintiffs who argue that their constitutional and public trust rights are being violated by the government's creation of climate danger. The case is one of many related legal actions brought by youth in several states and countries, all supported by Our Children's Trust, seeking science-based action by governments to stabilize the climate system.

https://www.ecowatch.com/our-childrens-trust-motions-2422789150.html

Fossil Fuel Associations Scramble to Quit Kids Climate Lawsuit Before Discovery Deadline

In an unusual procedural move, the American Petroleum Institute (API) and American Fuel & Petrochemical Manufacturers filed motions Thursday requesting the court's permission to withdraw from the Juliana v. USclimate lawsuit, brought by 21 young people. The associations are following the lead of the National Association of Manufacturers, who filed a similar motion to withdraw on May 22.

Now, all three trade association intervenor defendants have filed motions to withdraw from the case, evading last night's discovery deadline.These motions are especially unusual after numerous legal efforts have tried to get a federal court in Oregon to throw out the lawsuit. For any defendant to leave the litigation, U.S. Magistrate Judge Thomas Coffin must grant permission.

...

"API and its members will not come clean on the facts of climate change because they know it exposes them to liability for the damage they too have caused to the global climate system," Julia Olson, co-lead counsel for plaintiffs and executive director of Our Children's Trust, said.

"After these youths sued the government, the trade associations pleaded their members' interests would be destroyed if they weren't allowed to be in the case, but now they are running for the hills. Now, they've decided they're better off being on the sidelines than subjecting themselves to discovery,."

When youth plaintiffs filed their lawsuit in August 2015, only the federal government and government agencies were named as defendants. In November 2015, the associations intervened in the case on the side of the U.S. government defendants, calling the lawsuit a "direct threat to [their] businesses."

"What is noticeably absent from these withdrawal motions is the reason why the fossil fuel industry wants to leave the case," Philip L. Gregory, co-lead counsel for plaintiffs and a party with Cotchett, Pitre & McCarthy LLP of Burlingame, California, said. "They plead with the court to let them out, yet fail to give Judge Coffin any reason behind their change of heart,"

In a January 2016 proceeding before Judge Coffin, an attorney representing all three trade associations explained how these associations would speak with "one voice" if permitted to join the litigation:

"...having the associations participate as associations in this litigation effectively represents those interests without a multiplicity of disparate viewpoints and voices. Rather, in fact, they have joined to speak with one voice through this intervention motion."

The federal court allowed these fossil fuel industry associations to become full party defendants. However, when these intervenor defendants filed their answer to the allegations in young plaintiffs' complaint, the industry claimed it lacked "sufficient knowledge" to take a position on the science of climate change, and most of the claims in the complaint.

Intervenor defendants since agreed to set forth their positions on the scientific facts by responding to requests for admissions, which Plaintiffs subsequently served on March 24. When the fossil fuel defendants had not submitted their responses, Judge Coffin ordered that they be electronically-filed with the court. At the May 18 case management conference, Judge Coffin granted intervenor defendants an extension to submit their responses until the end of the day, May 25. Rather than take a position on the science or the effects of climate change, the fossil fuel industry chose to seek toback out of the case.

Attorneys for youth plaintiffs have already collected evidence through informal discovery that shows all three associations and their members have had long-standing knowledge of climate danger, and at the same time, used their undue influence over the U.S. government to sabotage efforts to address the urgent problem.

"Our government is a trustee over the atmosphere, and yet the Trump administration is wrongfully colluding with the intervenors to increase carbon emissions," Alex Loznak, 20, of Roseburg, Oregon and one of the youth plaintiffs in the case, said. "These industry groups can't be allowed to interfere with our democracy or our climate system without consequences."

http://www.ecowatch.com/climate-lawsuit-rex-tillerson-2322025689.html

tracker

http://www.ecowatch.com/trump-climate-lawsuit-appeal-2311050109.html

Fossil Fuel Defendants Join Trump in Move to Appeal Kid's Groundbreaking Climate Lawsuit

Mar. 11, 2017 09:40PM EST

Our Childrens Trust

Lawyers representing fossil fuel defendants in a youth climate lawsuit filed a motion Friday with a U.S. District Court seeking an appeal to the Ninth Circuit Court of Appeals on a Nov. 10, 2016 order in Juliana v. United States. As reported by The Washington Post, the Trump Administration filed a similar motion requesting appeal on Tuesday. Fossil fuel defendants support the Trump Administration's motion.

Fossil fuel defendants claim Judge Ann Aiken erred when ruling that "the political question doctrine is not a barrier to plaintiffs' claims." The fossil fuel defendants argue the executive and legislative branches of government, and not the judiciary, should resolve the issues presented by plaintiffs in this case.

Attorneys with Sidley Austin represent the fossil fuel defendants, who are members of trade associations API (formerly directed by now Secretary of State Rex Tillerson), AFPM and NAM. From their motion filed on Friday:

"If the case proceeds to expert discovery, that phase will certainly be complicated and protracted, given the complex scientific debate that swirls around the issues raised by the plaintiffs' lawsuit. The resources required to engage in fact and expert discovery will be enormous, and those resources will be preserved if the intervenor-defendants prevail on interlocutory appeal."

Judge Aiken, informed by Magistrate Judge Thomas Coffin's recommendation, holds the power to decide whether or not to certify the questions for appeal sought with defendants' motions.

But Judge Aiken has already made her position clear on the political question issue. From her Nov. 10 order that the government and fossil fuel defendants are seeking to appeal, Judge Aiken wrote:

"However, the scope of the political question doctrine should not be overstated. As Alexis de Tocqueville observed, [t]here is hardly any political question in the United States that sooner or later does not turn into a judicial question." Alexis de Tocqueville, Democracy in America 440 (Liberty Fund 2012)."

In fact, more than 11 pages of Judge Aiken's order thoughtfully and judicially analyzed and concluded on the political question issue. Her order walked through all six "Baker factors" from the Supreme Court's 1962 opinion in Baker v. Carr, a case recently featured in a 2016 podcast produced as part of the RadioLab Series "More Perfect." Following her analysis, Judge Aiken included a section entitled "Summary: This Case Does Not Raise a Nonjusticiable Political Question." From that section, the order reads:

"There is no need to step outside the core role of the judiciary to decide this case. At its heart, this lawsuit asks this Court to determine whether defendants have violated plaintiffs' constitutional rights. That question is squarely within the purview of the judiciary.

"This case shares some key features with Baker itself. In Baker, a group of voters challenged a statute governing the apportionment of state legislative districts. 369 U.S. at 188-95. Sixty years of population growth without legislative reapportionment had led to legislative districts had led to some votes carrying much more weight than others. Id. at 192-93. Here, the majority of youth plaintiffs are minors who cannot vote and must depend on others to protect their political interests. Thus, as amicus the League of Women Voters persuasively argues, the youth plaintiffs' claims are similar to the Baker claims because they are 'rooted in a 'debasement of their votes' and an accompanying diminishment of their voice in representational government." Br. for the League of Women Voters in the United States et al. as Amici Curiae at 19-20 (doc 79-1).

"In Baker, the Court acknowledged that the plaintiffs' claims had political dimensions and ramifications - but nonetheless concluded none of the Baker factors was inextricable from the case. 369 U.S. at 209. Similarly as discussed in detail above, this case raises political questions yet is not barred by the political question doctrine."

"The political question argument is a last ditch effort to avoid judicial review,"Julia Olson, plaintiffs' counsel and executive director of Our Children's Trust, said. "When our political branches deny our plaintiffs their fundamental rights, it is absolutely the court's job to step in. This is well-settled and this defense is dead."

Juliana v. United States was filed in 2015 by 21 young plaintiffs who argue that their constitutional and public trust rights are being violated by the government's creation of climate danger. Judge Ann Aiken's November order denied motions to dismiss brought by both the Obama administration and fossil fuel industry defendants.

Juliana v. United States is one of many related legal actions brought by youth in several states and countries, all supported by Our Children's Trust, seeking science-based action by governments to stabilize the climate system.

http://www.ecowatch.com/trump-climate-change-lawsuit-2307504755.html

The Trump administration filed a motion Tuesday seeking an appeal to the Ninth Circuit Court of Appeals on a federal judge's Nov. 10, 2016 order in Juliana v. United States. The Trump administration also filed a motion to delay trial preparation until after its appeal is considered.

img

Further, the Trump administration asked for expedited review of both motions, arguing the plaintiffs'Jan. 24 letter requesting the government to retain records relating to climate change and communications between the government and the fossil fuel industry was overly burdensome. The excerpt from the government's stay motion said:

"Plaintiffs … intend to seek discovery relating to virtually all of the federal government's activities relating to control of CO2 emissions ... Compounding the United States' burdens, Plaintiffs have indicated that their intended discovery has a temporal scope of more than sixty years ... Absent relief, there will most certainly be depositions of federal government fact witnesses ... that will explore the extraordinarily broad topic of climate change and the federal government's putative knowledge over the past seven decades."

Yet, in another complex case regarding the Deepwater Horizon oil spill and BP, the U.S. produced more than 17 million pages of documents from April to September of 2011. Plaintiffs maintain that their requests are limited, reasonable and aimed at getting to trial this fall.

Appeals typically do not occur until a trial court has issued final rulings following the presentation of evidence, but the Trump administration is asking federal Magistrate Judge Coffin to exercise his discretion to allow the case to proceed to the Court of Appeals before final judgment.

Attorneys representing fossil fuel industry defendants are expected to file papers supporting the government's motions on Friday.

"The Trump administration argues that this is a big case and so the burdens of preserving government documents warrant an expedited review," Julia Olson, plaintiffs' counsel and executive director of Our Children's Trust, said. "They're right. It is a big case. We have a classic example of the government's misplaced priorities: They prefer to minimize their procedural obligations of not destroying government documents over the urgency of not destroying our climate system for our youth plaintiffs and all future generations?"

In the government's answer to the youth plaintiffs' complaint, they admitted that "the use of fossil fuels is a major source of [carbon dioxide] emissions, placing our nation on an increasingly costly, insecure and environmentally dangerous path."

The case was brought by 21 young plaintiffs who argue that their constitutional and public trust rights are being violated by the government's creation of climate danger. Judge Ann Aiken's November order denied motions to dismiss brought by both the Obama administration and fossil fuel industry defendants.

"This request for appeal is an attempt to cover up the federal government's long-running collusion with the fossil fuel industry," Alex Loznak, 20-year-old plaintiff and Columbia University student, said. "My generation cannot wait for the truth to be revealed. These documents must be uncovered with all deliberate speed, so that our trial can force federal action on climate change."

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Other pre-trial developments

During Wednesday's telephonic case management conference between attorneys for the parties and Magistrate Judge Thomas Coffin, the U.S. Department of Justice (DOJ) took the view that the Trump administration, will have the opportunity to use executive privilege to prevent the release of evidence in the possession of the National Archives and Records Administration (NARA).

DOJ attorneys said they recently informed the White House that NARA was in the process of gathering documents requested by the plaintiffs. It is the DOJ's view that former Presidents George H. W. Bush, Bill Clinton and George W. Bush, will have the opportunity to bar release of the records of their respective administrations, but President Trump will ultimately have the authority to bar release of any and all NARA records.

The next Juliana v. United States case management conference with Judge Coffin is scheduled for April 7 and will be telephonic.

Attorneys for youth plaintiffs are in the process of compiling a list of prospective witnesses to be deposed, including Secretary of State Rex Tillerson and expect to provide that list to defendants next week.

img

Juliana v. United Statesis one of many related legal actions brought by youth in several states and countries, all supported by Our Children's Trust, seeking science-based action by governments to stabilize the climate system.

https://insideclimatenews.org/news/01032017/childrens-trust-climate-change-lawsuit-api

Attorneys representing 21 children who are suing the federal government over its responsibility to slow climate change are seeking answers from the oil and gas industry. The plaintiffs want to uncover what role fossil fuel interests played in shaping government climate policies.

The plaintiffs in

The request seeks a wide range of documents, including any from internal API groups related to climate change and government lobbying. Examples noted in the request include API's CO2 and Climate Change Task Force, its Environmental Strategy Team and its Climate Change Steering Group. It also seeks communications with Exxon and other oil companies discussing climate.

The request specifically seeks memoranda written by individual industry researchers, lobbyists, trade association employees and other fossil fuel advocates.Those people were engaged in early research into climate change and in attempts by the industry to sow doubt about the emerging consensus that global warming is caused by emissions from fossil fuels.

Many of those named figured in an investigation by InsideClimate News in 2015, which included revelations that API's CO2 and Climate Change Task Force monitored and shared climate research between 1979 and 1983. The investigation showed that scientists from nearly every major oil company, including Exxon, Texaco and Shell, were aware of the oil industry's possible impact on the world's climate far earlier than previously known.

Shell warned of the catastrophic risks of climate change more than a quarter of century ago in a 1991 film that was rediscovered and posted online by the Correspondent, a Dutch news outlet, on Feb. 28.

Ties between industry and government strengthened during the early years of the George W. Bush administration when fossil fuel advocates like former API lobbyist Philip A. Cooney gained influence over U.S. government policy regarding climate change.

Cooney became chief of staff at the White House Council on Environmental Quality, an office that drove climate policy. Government scientists accused Cooney of rewriting federal research reports to sow doubt about man-made climate change. Cooney resigned in 2005 and went to work for Exxon.

In their lawsuit, which was originally filed in September 2015 andupdated to include President Trump as a defendant after his inauguration, the plaintiffs accuse the federal government of violating their constitutional rights by knowing about the dangerous climate impacts of burning fossil fuels while supporting their development.

The litigation, under something calledthe public trust doctrine, is an unusual approach to fighting climate change by holding the government accountable, but it could uncover key documents in the role industry played in shaping U.S. policies related to the issue. (The other causes of action in the complaint are substantive due process under the 5th amendment and equal protection.)

"The truth will come out in this case," Julia Olson, counsel for plaintiffs and executive director of Our Children's Trustsaid in a statement. "We intend to hold the defendants accountable for their longstanding role in causing climate change, and their clear knowledge about the price the planet would pay for the sake of their profits."

PUBLISHED UNDER:

BUSINESS AND ACCOUNTABILITY

EXXON CLIMATE

CLIMATE CHANGE

API

https://insideclimatenews.org/news/09022017/climate-change-lawsuit-donald-trump-children

A lawsuit filed by 21 kids challenging the federal government to slow climate change wasupdated on Thursday to list President Donald Trumpas a defendant, replacing former President Barack Obama.

In the lawsuit, originally filed in September 2015, the young plaintiffs have accused the federal government of violating their constitutional rights by knowing about the dangerous climate impacts of burning fossil fuels and supporting the development of fossil fuel production anyway.

The federal government under the Obama administration, along with fossil fuel companies, requested dismissal of the case, but a federal district court judge in Oregon ruled last fall that the case could proceed. Now, Juliana v. United States could go to trial as early as this year, possibly proving to be a check against the Trump administration's pro-fossil fuel agenda.

"I am hopeful that our case will reverse or prevent all damage our current president may inflict," Aji Piper, 16-year-old plaintiff from Seattle, said in a statement. "I hope that our trial may shed light upon the issue of climate change, and educate the American populace on the difference between real and 'alternative' facts."

The White House did not respond immediately to a request for comment.

In the coming weeks, notice of deposition is expected to be given to Secretary of State Rex Tillerson, according to Julia Olson, the lead counsel for the plaintiffs and executive director of the advocacy group Our Children's Trust. A judge ruled last month that the plaintiffs could depose Tillerson, the former chief executive of ExxonMobil Corp., if he was confirmed. Tillerson was subsequently confirmed

Children's climate lawsuit to Donald Trump: See you in court

ThinkProgress-Feb 10, 2017

United States, a federal lawsuit brought against the U.S. government by a group of kids and young adults concerned about climate change.

Trump Named as a Defendant in Landmark Climate Lawsuit

Scientific American-Feb 10, 2017

View all

Story image for kids climate lawsuit from InsideClimate News

Children's Climate Lawsuit Against US Adds Trump as Defendant

InsideClimate News-Feb 9, 2017

The young plaintiffs in a climate change lawsuit against the U.S. government say they hope the suit prevents future damage to the planet by ...

Kids Name Trump as Defendant in Landmark Climate Case

EcoWatch-Feb 9, 2017

View all

Story image for kids climate lawsuit from BillMoyers.com

These Kids Will See Trump in Court

BillMoyers.com-Feb 10, 2017

Twenty-one kids and climate scientist James Hansen were suing the Obama ... Donald Trump has yet another lawsuit to deal with. Twenty-one ...

Story image for kids climate lawsuit from WNYC

Donald Trump Faces Lawsuit From Local Teen Over Climate Change

WNYC-Feb 1, 2017

Donald Trump Faces Lawsuit From Local Teen Over Climate Change ... The complaint also alleges that kids are being discriminated against for ...

Story image for kids climate lawsuit from Mashable

How 21 kids could keep climate websites from going completely dark

Mashable-Jan 26, 2017

Their lawsuit against the federal government and fossil fuel companies seeks to hold them accountable for failing to adequately address ...

http://www.ecowatch.com/climate-change-case-youth-2150917311.html

win 12/16

no link

American Youth Make Fossil Fuel Industry Confront Climate Science in Federal Court

The Conversation

By Mary Wood, Charles W. Woodward, IV and Michael C. Blumm

At a time when humanity must reverse course before plunging over a climate cliff, the American public has elected a president who seems to have both feet on the fossil fuel accelerator. If there is a mechanism to force the Trump Administration to put the brakes on dirty energy policy, a lawsuit brought by 21 young people against the Obama administration may hold the key.

Two days after the presidential election, on Nov. 10, a federal district court in Oregon issued a path-breaking decision in Juliana v. U.S. declaring that youth—indeed, all citizens—hold constitutional rights to a stable climate system.

The youth, aged nine to 20 years old, seek a court-supervised plan to lower carbon dioxide emissions at a rate set by a science-based prescription. The judicial role is analogous to court-supervised remedies protecting equal opportunity for students after Brown v. Board of Education.

The Juliana v. U.S. decision could be a legal game-changer, as it challenges the entire fossil-fuel policy of the U.S.

Cruel Irony

Environmental lawsuits typically rely on statutes or regulations. But Juliana is a human rights case that bores down to legal bedrock by asserting constitutional rights to inherit a stable climate system.

The court, which ruled the suit can proceed to trial, rightly described the case as a "civil rights action"—an action "of a different order than the typical environmental case"—because it alleges that government actions "have so profoundly damaged our home planet that they threaten plaintiffs' constitutional rights to life and liberty." The litigation, variously called "a "ray of hope," a legal "long shot" and a "Hail Mary pass," yielded its groundbreaking decision not a moment too soon.

At a rally for action on climate in 2014. The decisions made by adults will have broad implications for the planet today's youth will live on as adults.

Joe Brusky / Flickr

The year 2016 is the hottest year on record and Arctic sea ice has hit its lowest recorded level. Heated ocean waters threaten coral reefs and marine ecosystems.

To have any hope of reversing or stalling these effects of climate change, the world must restrict fossil fuel production and ultimately switch to safe renewable energy. Even continued production solely from currently operating oil and gas fields will push the planet to 1.5 degrees Celsius over preindustrial temperatures, beyond the aspirational limit set by the global Paris agreement on climate change.

President-elect Trump, who notoriously claimed that climate change was a hoax perpetrated by the Chinese, has said he plans to immediately approve the highly contentious Keystone pipeline, open public land to drilling, rescind Obama's Clean Power Plan, eliminate NASA's climate research and withdraw from the Paris climate agreement. He intends to spur production of US$50 trillion worth of shale, oil, coal and natural gas.

The 70-year-old president-elect will not live long enough to witness the worst consequences of rapidly expanding fossil fuel development. The cruel irony for young people is that actions taken during Trump's time in office will lock in a future of severe disruptions within their projected lifetimes—and sea level rise that could make coastal cities uninhabitable. James Hansen, formerly the nation's chief climate scientist at NASA, has warned, "Failure to act with all deliberate speed …functionally becomes a decision to eliminate the option of preserving a habitable climate system."

Sea levels are projected to rise at least three feet, and perhaps much more, in the lifetime of children today, inundating some locations and making storm surges more dangerous. The Juliana lawsuit and others like it argue that citizens have a right to a stable climate.

NOAA

Constitutional Argument

For decades, the political branches have promoted fossil fuel consumption despite longstanding knowledge about the climate danger. President Obama ignored warnings when he charted a disastrous course of increased fossil fuel production early in office. In a last moment of opportunity to avert climate tipping points, Americans should recall an elementary school civics lesson: The U.S. has three, not two, branches of government. The founders wisely vested an independent judiciary with the responsibility of upholding the fundamental liberties of citizens against infringement by the other branches.

As the president-elect promises to ramp up fossil fuel production and dismantle Obama's recent climate measures, and with no obvious statutory law to prevent him from doing so, only a fundamental rights approach carries any hope of trumping Trump.

In Juliana, the youth asserted their fundamental rights under the Constitution's substantive due process clause and the public trust doctrine. This is an ancient principle requiring government to hold and protect essential resources as a sustaining endowment for citizens. They contended that government infringed on their rights to life, liberty, and property by promoting fossil fuel policies that threaten runaway planetary heating—thereby jeopardizing human life, private property and civilization itself.

The principle of public trust law, dating to the time of Roman Emperor Justinian, holds that natural resources, including the sea, the shores of the sea, the air and running water, are common to everyone. It has since become part of U.S. jurisprudence.

Petar Miloševic / Wikipedia

Judge Ann Aiken's Juliana decision in November upheld both public trust and substantive due process rights under the Constitution and allowed the case to go forward. "I have no doubt that the right to a climate system capable of sustaining human life is fundamental to a free and ordered society," she wrote, explaining that public trust rights, which "both predated the Constitution and are secured by it," cannot be "legislated away."

The opinion is bound to have a rippling effect. The case is actually part of a wave of atmospheric trust litigation (ATL) cases and petitions across the U.S. and in other countries. Launched by the group Our Children's Trust in 2011, the legal campaign asserts youths' rights to a stable climate system and seeks court-supervised climate recovery plans.

Recent victories in Massachusetts, Pakistan, the Netherlands and Washington state indicate widespread judicial concern over the political branches' failure to confront the climate emergency. The youth plaintiffs hope that the dominoes continue to fall in their favor in time to thwart climate catastrophe.

As ATL moves forward globally, the Juliana case will proceed to trial as early as next summer or fall. The plaintiffs' attorneys aim to show the government's deliberate indifference to mounting climate danger.

Already dubbed "the trial of the century," this is the first time that U.S. fossil fuel policy will confront climate science in court. Any government denial of climate change will have to confront the scrutiny of a fact-finding judge.

Consent Degree From Obama?

The case also offers President Obama a fleeting opportunity.

Five days after the election, Sec. of State Kerry proclaimed that President Obama would use his last days in office to "do everything possible to meet our responsibility to future generations to be able to address this threat to life itself on the planet."

If so, the most viable way might be to offer a partial settlement of the Juliana case before going to trial. One form of settlement could be an enforceable consent decree consisting of interim steps to halt further fossil-fuel mining and infrastructure development. Such a settlement would help secure Obama's measures to close the Arctic to drilling and halt coal leasing on federal lands.

Young Americans could use a down payment on the colossal climate mortgage hanging over their future. And President Obama could use a climate legacy. It may be worth his time now to sit down with the "plucky millennials" who sued him to save the planet—before his time in office runs out.

Mary Wood is the Philip H. Knight Professor of Law at the University of Oregon. Charles W. Woodward, IV is a post graduate research fellow at University of Oregon. Michael C. Blumm is the Jeffrey Bain Scholar & Professor of Law at Lewis & Clark. Reposted with permission from our media associate The Conversation.

http://www.alternet.org/environment/california-and-epa-poised-expand-pollution-potential-drinking-water-reserves

...

Suing because asking hasn’t worked.

In Washington state, a group of 12- to 16-year-olds supported by environmental nonprofit Our Children’s Trust has repeatedly asked the Department of Ecology to more strictly regulate carbon emissions. But the state has repeatedly refused, saying it lacks the authority and buying more time. Washington’s latest rendition of the Clean Air Rule—proposed legislation that would limit carbon pollution—fails to go far enough.

The kids are asking for something that, surprisingly, does not exist: a rule that caps emissions and requires reductions based on the best available science. The Department of Ecology, which is charged by statute and state and federal constitutions to manage and protect the environment, has not challenged the validity of the science the kids have presented in court—numbers on graphs and charts based on recent research, all thoroughly cross-checked by some of the nation’s leading climate scientists.

Yet the state’s current plan is based on outdated science. It calls for a reduction of statewide greenhouse gas emissions to 1990 levels by 2020. This would require an annual reduction in emissions of 1.7 percent. Today’s experts say we’ll need to slash our emissions by about four times more than that. In addition, the state’s plan includes allowances for some businesses to drag their feet meeting the goals and credits given for out-of-state and past sustainable investments. There’s even a dubious mechanism that allows some carbon credits to be counted twice.

The state has not only denied pleas for a rule that would require quicker action but challenged recent court direction to do so. Finding that the state had a “constitutional obligation to protect the public’s interest in natural resources held in trust for the common benefit of the people,” the King County Superior Court ordered the department to create such a rule by the end of 2016.

But Gov. Jay Inslee's administration appealed the order. Although he’s considered a “climate hero,” said Andrea Rodgers, an attorney with the Western Environmental Law Center who represents the kids in court, “he missed a tremendous opportunity.”

It is an election year, after all. Facing tight races in November, state Democrats may be wary that strong climate action will appear anti-business. And so, two quintessential American ideals have again butted heads: private enterprise versus the public good.

Ultimately, that’s what this case is about—the public trust.

The public trust doctrine is a legal concept in which governments protect resources—including air, water, and land—for the benefit of citizens as a whole. It’s an ancient idea with roots in indigenous cultures and Roman law’s res communes, addressing things owned by no one and available to all.

It’s also the backbone of modern environmental law. Embedded in statutes back in 1892 when the U.S. Supreme Court found that the public, not a private railroad company, owned the submerged tidelands along Lake Michigan, this idea of public trust has since been invoked over water, oil, beaches, fish stocks, shellfish beds, and so on....

http://projectcensored.org/young-plaintiffs-invoke-constitutional-grounds-climate-protection-federal-court/

August 17, 2016

In April 2016, twenty-one plaintiffs, aged eight to nineteen, brought a lawsuit against the federal government and the fossil fuel industry to the United States Federal District Court in Eugene, Oregon. Judge Thomas Coffin ruled in favor of theplaintiffs’ charge that the federal government violates constitutional and public trust rights by its ongoing promotion of fossil fuels that destabilize the earth’s climate.In a report published byForbes, James Conca wrote that the lawsuit was the first of its kind, connecting climate change and the US Constitution.

The court agreed to the plaintiffs’ assertion that it is the government’s duty to abide by the rules of the public trust doctrine, protecting essential natural resources.

In his ruling, Justice Coffin wrote, “The debate about climate change and its impact has been before various political bodies for some time now. Plaintiffs give this debate justiciability by asserting harms that befall or will befall them personally and to a greater extent than older segments of society… [T]he intractability of the debates before Congress and state legislatures and the alleged valuing of short-term economic interest despite the cost to human life, necessitates a need for the courts to evaluate the constitutional parameters of the action or inaction taken by the government.”

As Conca reported, the decision “upheld the youthPlaintiffs’ claims in the Fifth and Ninth Amendments ‘by denying them protections afforded to previous generations and by favoring the short-term economic interests of certain citizens.’”

In January 2016, three fossil fuel industry trade associations, representing nearly all of the world’s largest fossil fuel companies, called the case “a direct, substantial threat to our businesses.”

According to sixteen-year old plaintiff Victoria Barrett, “Our generation will continue to be a force for the world.”

The corporate media coverage of this lawsuit included two pieces form the New York Times,one by John Schwartz and a shorter opinion piece by Anna North, both published in early May. In November 2015, MSNBC described the lawsuit as an “unusual case” that is “long on symbolism” but “unlikely” to win, while noting the risks associated with any decision that might diminish the fossil fuel industry’s interests.

In September 2016, Judge Ann Aiken, another judge in the same Federal Court, is scheduled to review Judge Coffin’s decision.

Source:

James Conca, “Federal Court Rules on Climate Change in Favor of Today’s Children”Forbes, April 10, 2016, http://www.forbes.com/sites/jamesconca/2016/04/10/federal-court-rules-on-climate-change-in-favor-of-todays-children/#5e5973246219.

Student Researchers:Sabrina Salinas and Eric Osterberg (Citrus College)

Faculty Evaluator:Andy Lee Roth (Citrus College)

http://ecowatch.com/2016/06/10/kids-get-day-in-court/

no links

Kids Get Their Day in Court: 21 Youth Sue U.S. Government in Landmark Climate Lawsuit

Our Children's Trust | June 10, 2016 9:22 am |

U.S. District Court Judge Ann Aiken scheduled Wednesday an oral argument for the youths’ landmark climate lawsuit for Sept. 13 at 10 a.m. PST in Eugene, Oregon.

The youth plaintiffs after the hearing on March 9 in Eugene, Oregon. Photo credit: Our Children’s Trust

The 21 young plaintiffs received a favorable decision in their case brought against the federal government and fossil fuel industry from U.S. Magistrate Judge Thomas Coffin in April. Now, they are looking forward to their next opportunity to appear in court to fight for climate justice.

“I am excited that Judge Aiken is interested in hearing our oral argument this September,” plaintiff Kiran Oommen, a 19-year-old from Eugene, said. “The U.S. government’s continued support of the fossil fuel industry, despite the obvious high risks, is hurting people all the time and it’s getting worse. With incidents like the oil train derailment and proceeding disaster in Mosier, Oregon this month, we can see the direct negative consequences of the government’s blatant disregard for the health and safety of the people. The longer this case lasts, the greater the evidence will be condemning their actions.”

[Oil Train Derails in Columbia River Gorge, Rally Calls for Ban on 'Bomb Trains' http://ow.ly/XKtS300WjhE @tarsandsRESIST

3:30 PM - 5 Jun 2016

Photo published for Oil Train Derails in Columbia River Gorge, Rally Calls for Ban on 'Bomb Trains'

Oil Train Derails in Columbia River Gorge, Rally Calls for Ban on 'Bomb Trains'

A unit train carrying crude oil on the Union Pacific rail derailed near Mosier, Oregon. The use of the Columbia River Gorge National Scenic Area as a fossil

ecowatch.com]

The plaintiffs are suing the federal government for violating their constitutional rights to life, liberty and property and their right to essential public trust resources, by permitting, encouraging and otherwise enabling continued exploitation, production and combustion of fossil fuels. The case is one of multiple related legal actions brought by youth in several states and countries, all supported by Our Children’s Trust, seeking science-based action by governments to stabilize the climate system. Recently, the Massachusetts Supreme Judicial Court and the King County Superior Court in Seattle, Washington, also ruled in favor of youth in related actions.

21 Kids Take on the Feds and Big #Oil in Historic #Climate Lawsuit http://ow.ly/Zk1UZ via @ecowatch

3:30 PM - 14 Mar 2016

Photo published for 21 Kids Take on the Feds and Big Oil in Historic Climate Lawsuit

21 Kids Take on the Feds and Big Oil in Historic Climate Lawsuit

The judge asked the flustered DOJ attorney, “Are you robbing Peter to pay Paul?”

ecowatch.com

“We look forward to the opportunity to argue this case before Judge Aiken,” Julia Olson, counsel for the plaintiffs and executive director of Our Children’s Trust, said. “The more these brave young climate advocates appear in court, with the tremendous public support we anticipate for this September 13 hearing, the better. This is another chance to tell the egregious story of this case: that for more than 50 years our government has exploited fossil fuels, hand in hand with industry, knowing it would destroy our climate system and the healthy futures for these young people. We are eager to show the court how these youth’s fundamental constitutional rights are being infringed.”

The Western Environmental Law Center ("WELC") is a nonprofit public interest law firm that works to protect and restore western wildlands and advocates for a healthy environment on behalf of communities throughout the West.

WELC started in the early 1990s by public interest attorneys Michael Axline and John Bonine. It grew out of the Environmental Law Clinic at the University of Oregon.

External links

Western Environmental Law Center - official site

ron arnold Db hit: http://www.undueinfluence.com/western_environmental_law_center.htm

http://ecowatch.com/2016/04/29/climate-lawsuit-washington/

Today, in a surprise ruling from the bench in the critical climate case brought by youths against the State of Washington’s Department of Ecology, King County Superior Court Judge Hollis Hill ordered the Department of Ecology to promulgate an emissions reduction rule by the end of 2016 and make recommendations to the state legislature on science-based greenhouse gas reductions in the 2017 legislative session.

Judge Hill also ordered the Department of Ecology to consult with the youth petitioners in advance of that recommendation. The youths were forced back to court after the Department of Ecology unexpectedly withdrew the very rulemaking efforts to reduce carbon emissions the agency told the judge it had underway. This case is one of several similar state, federal and international cases, all supported by Our Children’s Trust, seeking the legal right to a healthy atmosphere and stable climate.

“For the first time, a U.S. court not only recognized the extraordinary harms young people are facing due to climate change, but ordered an agency to do something about it,” Andrea Rodgers, the Western Environmental Law Center attorney representing the seven youths, said. “Ecology is now court-ordered to issue a rule that fulfills its constitutional and public trust duty to ensure Washington does its part to reduce greenhouse gas emissions and protect the planet.”

In granting the youth a remedy, Judge Hill noted the extraordinary circumstances of the climate crisis, saying, “This is an urgent situation … these kids can’t wait.” The court discussed the catastrophic impacts of climate destabilization globally, including the impending loss of polar bears and low-lying countries like Bangladesh. The court explained that while it had no jurisdiction outside of Washington state, it did have jurisdiction over the Department of Ecology and would order the agency to comply with the law and do its part to address the crisis.

21 Kids Take on the Feds and Big #Oil in Historic #Climate Lawsuit https://t.co/CXWK7rs3Ia via @ecowatch

— DeSmogBlog (@DeSmogBlog) March 14, 2016

“It was absurd for Ecology to withdraw its proposed rule to reduce carbon emissions,” petitioner Aji Piper, who is also a plaintiff on the federal constitutional climate lawsuit, supported by Our Children’s Trust, said. “Especially after Judge Hill declared last fall that our ‘very survival depends upon the will of [our] elders to act now … to stem the tide of global warming.’ I think Ecology should be ashamed by its reversal of potentially powerful action and today, Judge Hill issued a significant ruling that should go down in history books. Our government must act to protect our climate for benefit of us and future generations.”

After a landmark November, 2015 decision, in which Judge Hill found that the state has a “mandatory duty” to “preserve, protect and enhance the air quality for the current and future generations” and found the state’s current standards to fail that standard dramatically, the Department of Ecology nonetheless unilaterally withdrew its proposed rule to reduce carbon emissions in the state in February, just months after Judge Hill specifically underscored the urgency of the climate crisis.

“This case explains why youth around this country and in several other countries, are forced to bring their governments to court to secure a healthy atmosphere and stable climate,” Julia Olson, executive director and chief legal counsel at Our Children’s Trust, said. “Despite clear scientific evidence and judicial recognition of the urgency of the climate crisis, Washington and most governments across the U.S. and other countries are failing to take correspondingly urgent, science-based action. That failure unfairly consigns youth to a disproportionately bleak future against which they can only reasonably ask the courts to step in to address this most time sensitive issue of our time.”

Related cases brought by youth to protect the atmosphere are pending before other U.S. courts in the federal district court in Oregon and in the state courts of North Carolina, Pennsylvania, Colorado, Massachusetts and Oregon.

“This is a massive victory,” petitioner Gabe Mandell said.

http://ecowatch.com/2016/03/11/kids-sue-climate-change/

Courtrooms usually aren’t jovial places, but with 21 youth plaintiffs and two busloads of supporting junior high-school students in tow, the air in the U.S. District Courthouse here on Wednesday felt more field trip than federal court.

The occasion for the youthful energy was a hearing on a complaint filed on behalf of the plaintiffs, aged 8 – 19, by Oregon nonprofit Our Children’s Trust. The kids’ lawyers assert that their clients and the younger generation as a whole, have been deprived of key rights by their own government. By failing to act on climate change, they argue, the U.S. government—including President Obama and a baker’s dozen federal agencies—has valued its own generation more than future generations, who will bear a greater burden with respect to the climate crisis.

The Justice Department filed a motion to dismiss the complaint and Wednesday’s hearing had a federal judge considering that motion. The youth plaintiffs’ counsel sparred with government lawyers as well as attorneys representing fossil fuel interests. This kind of case might sound, well, juvenile, but trade groups with ties to the oil and gas lobby—the American Petroleum Institute, the American Fuel and Petrochemical Manufacturers and the National Association of Manufacturers—were concerned enough about it that they joined as co-defendants in November of last year. Now, the Oregon U.S. District Court will decide whether or not the complaint will proceed to trial.

Xiuhtezcatl Tonatiuh Martinez, a 15-year-old indigenous activist and a plaintiff on the case, summed up the kids’ perspective at a press conference after the hearing. “We are valuing our futures over profits,” he said. “We are valuing this planet over corporate greed.”

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This isn’t the first time Our Children’s Trust has brought forth a youth climate lawsuit. Indeed, the group has at one time or another filed suit in all 50 states and currently has cases pending in five states. Back in November, in a case brought by a coalition of Seattle teenagers, a Washington judge ruled that the state was constitutionally obligated to protect its natural resources “for the common benefit of the people of the State”—a notable win for the young plaintiffs—but she did not go so far as to rule that the state’s carbon emissions-limiting standards in question needed to adhere to the “best available science.” A 2011 suit, which the youth plaintiffs ended up losing, also targeted the federal government for failing to keep the atmosphere safe for future generations. It perhaps goes without saying that these types of complaints are incredible long shots.

Julia Olson, a lawyer with Wild Earth Advocates and Our Children’s Trust who argued the plaintiffs’ case on Wednesday, is optimistic about the outcome of this complaint, though. “I believe in our Constitution and I think it can work to address even the most systemic, intractable problem of our generation,” she told me.

The complaint alleges violation of the kids’ Fifth Amendment rights to due process and equal protection. By failing to act on climate change, it argues, the government discriminates against youth as a class. Without access to a healthy climate, they’re deprived of their fundamental rights to life, liberty and property.

The complaint is also built on the public trust doctrine, a carryover from English common law that says a government has the duty to protect certain natural resources and systems on behalf of current and future generations. “It originated with Emperor Justinian in Rome,” Alex Loznak, a 19-year-old plaintiff, explained to the press. “It’s reflected in the Magna Carta, the writings of Thomas Jefferson and cited in U.S. court decisions dating back to the 1800s.”

An important question at hand on Wednesday was whether the public trust doctrine applies to the federal government. The U.S. government and its fossil-fuel industry co-defendants argued that legal precedent only considers it to apply to states. That’s a crucial distinction, because it will help determine whether or not the plaintiffs even have standing in the federal court system.

The defendants also contend that if the federal court took on the case, it would amount to an egregious overstep of authority by the judiciary. “This is the type of problem that is designed to be solved by the political branches,” argued U.S. counsel Sean C. Duffy at the hearing. He said that denying the U.S. government’s motion for dismissal would effectively turn the judicial branch into a “de facto super-agency.”

Another core argument of the defense is that all cases addressing constitutional rights must demonstrate that the government, through its actions, has infringed upon these rights or exceeded its authority. Instead, the defense argued, the kids’ case alleges a failure to act and you can’t require the government to simply “do more.” “Our Constitution is one that limits the power of government,” arguedintervenor counsel Quin Sorenson, who represented industry interests at the hearing.

That’s not how Olson sees it, though. “What we have today is not just a failure to act,” she told the press after the hearing. “The government is not just sitting by and doing nothing. They are doing everything to cause this problem.” Indeed, the complaint calls out the government for its continued actions to “permit, authorize and subsidize fossil fuel extraction, development, consumption and exportation.”

Supporters of the youth plaintiffs assemble on the steps of the US District Courthouse in Eugene, OR, after the hearing. The banner reads, “Our future is a constitutional right.” Photo credit: Clayton Aldern / Grist

It’s also not unprecedented for a court to demand that the government meet a specific standard to ensure its citizens’ safety, she said. In Brown v. Plata, for example, a 2010 Supreme Court case concerning prison reform, the court required a mandatory limit on prison populations for the sake of health and safety. Summarizing the decision, she said that while the Supreme Court had no scientific standards to apply at the time, it ruled that it could rely on expert evidence. “The Court selected the number—it set the standard—to keep those prisoners safe.” And when it comes to determining the safe level of climate pollution in the atmosphere, “we have scientific standards,” she said.

“The way I hope it will go is that the judicial branch will say, ‘You’ve got to do something,’” said Dr. James Hansen, adjunct professor at Columbia Universityand former director of NASA Goddard Institute for Space Studies. Hansen’s granddaughter is a plaintiff in the case and he’s formally listed in the complaint as the legal guardian of “Future Generations.” He continued, “Hopefully the court will ask for a plan: How are you going to ensure the rights of young people?”

In a time of gridlock and sorely needed climate action, the case couldn’t come soon enough, Hansen said. “It gets harder and harder to stabilize the climate if you go longer and longer without turning the curve.”

Addressing climate change is perhaps the greatest challenge of our time and it necessarily causes us to ask some big questions. Is there a constitutional right to be free from climate change? Is there a constitutional right to a safe climate? Is youth a class or simply a mutable trait? If the federal government takes actions that worsen the climate crisis, does that amount to an abuse of its power?

Said Olson: “We are not just in a climate crisis. We will have a significant constitutional crisis and a crisis in our democracy if this doesn’t work.”

...Significantly, similar legal issues are being considered in a federal lawsuit brought in August 2015 against the federal government by 21 young people from across the U.S. and Dr. James Hansen as guardian for all future generations, in the U.S. District Court for the District of Oregon. Just last week in that case, the world’s largest fossil fuel industry representatives filed a request to intervene to protect their commercial economic interests in fossil fuel exploitation and to thwart the youth’s request for protection of their fundamental constitutional rights. The proposed intervenors, the American Fuel and Petrochemical Manufacturers (representing members ExxonMobil, BP, Shell, Koch Industries and virtually all other major refiners and petrochemical manufacturers), the American Petroleum Institute (representing 625 oil and natural gas companies) and the National Association of Manufacturers, called the youth’s case “a direct threat to [their] businesses.”...

http://ecowatch.com/2015/11/20/stem-tide-climate-change/

...

Two teenagers from Eugene, Oregon appealed Judge Karsten Rasmussen’s adverse decision yesterday to their climate change lawsuit.In its decision, the court ruled that the state of Oregon has no responsibility to preserve Oregon’s iconic rivers and beaches, fish, wildlife, shorelands or the atmosphere for future generations.

Without addressing any of the evidence presented in expert declarations supporting the youth, including statements from the state’s own scientists, the court questioned “whether the atmosphere is a ‘natural resource’ at all.” Last year, Judge Rasmussen decision was reversed by the Oregon Court of Appeals in the same case brought by the teens, and plaintiffs Kelsey Juliana and Olivia Chernaik are hopeful that the most recent decision will be overturned again.

Juliana and Chernaik’s appeal comes less than two weeks after two landmark climate wins in the courts. On June 23, Washington state youth, who along with Juliana and Chernaik are part of a global youth-driven legal campaign, won an unprecedented decision in their climate change lawsuit. Hours later, after the win in Washington, the Dutch Urgenda Foundation and hundreds of Dutch citizens won a climate case that forces the Netherlands government to adopt stringent climate policies.

Back in Oregon, youth aren’t seeing similar victories—yet. The Oregon legislature ends its session this week without passing or even putting to a floor vote Oregon’s Climate Stability and Justice Act (HB 3470), which would have been the most comprehensive climate law in the state.

yahoo news 12/14

SALEM, Ore. (AP) — Proponents of an Oregon ballot measure requiring labels on genetically modified foods conceded defeat Thursday after a judge ruled against them and an automatic recount appeared unlikely to sway the outcome.

The Yes on 92 campaign said there are no legal options remaining that could lead them to victory.

our child juliana bak OCT

Levi Draheim

A Landmark Case

A HISTORY OF THE CASE

Juliana lawyers take page from LGBTQ rights ruling

Feds urge 9th Circuit to keep kids' climate case dormant

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Supreme Court pauses kids' case in win for Trump

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Trump admin asks Supreme Court to halt kids' case

DOJ seeks to limit scientists' testimony at climate trial

Court drops Trump from kids' case

DOJ experts downplay climate, health links

Justice Dept. petitions 9th Circuit on kids' case — again

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Trump administration aims to sideline kids' trial

Kids' case tests 'Hail Mary' climate argument

In blow to Trump, justices won't halt kids' climate case

Trump wants Supreme Court to halt kids' suit

High-profile climate trial to kick off this fall

These kids envision looming climate havoc. So they're suing

Science goes to court. Does skepticism equal 'perjury'...https://www.eenews.net/special_reports/juliana_v_us/stories/1060067949...https://en.wikipedia.org/wiki/Juliana_v._United_States">https://en.wikipedia.org/wiki/Juliana_v._United_States

Case history

Background

Initial hearings

Government objections

Interlocutory appeal

Involved parties

A new generation

Fuzzy future

Defendants

Two administrations (and industry) respond

Building on history

Public trust doctrine

‘On the Eve of Destruction’

The role of the court

Brown as a precedent

What’s next?

Taking a stand

Government's Climate Duties and Failures

'They Were Born Into This Problem'

A Surge of Climate Lawsuits Targets Human Rights, Damage from Fossil Fuels

Cities, states and the fishing industry want courts to hold fossil fuel companies accountable for global warming. Others argue government inaction violates rights.

By Nicholas Kusnetz

Climate Liability

Constitutional and Human Rights

Securities Fraud

Tried and True Tactics Remain