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

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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.

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The rallying cry to build it again and to build it better than before is inspiring after a natural disaster, but it may not be the best course of action, according to new research published in the journal Science.

"Faced with global warming, rising sea levels, and the climate-related extremes they intensify, the question is no longer whether some communities will retreat—moving people and assets out of harm's way—but why, where, when, and how they will retreat," the study begins.

The researchers suggest that it is time to rethink retreat, which is often seen as a last resort and a sign of weakness. Instead, it should be seen as the smart option and an opportunity to build new communities.

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Rethinking retreat could make it a strategic, efficient, and equitable way to adapt to the climate crisis, the study says.

Dr. Siders pointed out that it has happened before. She noted that in the 1970s, the small town of Soldiers Grove, Wisconsin moved itself out of the flood plain after one too many floods. The community found and reoriented the business district to take advantage of highway traffic and powered it entirely with solar energy, as the New York Times reported.

That's an important lesson now that rising sea levels pose a catastrophic risk around the world. Nearly 75 percent of the world's cities are along shorelines. In the U.S. alone coastline communities make up nearly 40 percent of the population— more than 123 million people, which is why Siders and her research team are so forthright about the urgency and the complexities of their findings, according to Harvard Magazine.

Some of those complexities include, coordinating moves across city, state or even international lines; cultural and social considerations like the importance of burial grounds or ancestral lands; reparations for losses or damage to historic practices; long-term social and psychological consequences; financial incentives that often contradict environmental imperatives; and the critical importance of managing retreat in a way that protects vulnerable and poor populations and that doesn't exacerbate past injustices, as Harvard Magazine reported.

If communities could practice strategic retreats, the study says, doing so would not only reduce the need for people to choose among bad options, but also improve their circumstances.

"It's a lot to think about," said Siders to Harvard Magazine. "And there are going to be hard choices. It will hurt—I mean, we have to get from here to some new future state, and that transition is going to be hard.…But the longer we put off making these decisions, the worse it will get, and the harder the decisions will become."

To help the transition, the paper recommends improved access to climate-hazard maps so communities can make informed choices about risk. And, the maps need to be improved and updated regularly, the paper said as the New York Times reported.


"It's not that everywhere should retreat," said Dr. Siders to the New York Times. "It's that retreat should be an option. It should be a real viable option on the table that some places will need to use."

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