There has been a significant development in the constitutional climate change lawsuit so far successfully prosecuted by 21 youth plaintiffs: The Ninth Circuit Court of Appeals has decided to hear oral argument over whether the Trump administration can evade trial currently set for Feb. 5, 2018. Oral arguments will be heard before the Ninth Circuit Court of Appeals in San Francisco on Dec. 11 and can be watched on a live stream beginning at 10 a.m. PST.
The subject of oral arguments will be the Trump administration's extraordinary mandamus petition filed in June, which seeks the Ninth Circuit's review of U.S. District Court Judge Ann Aiken's 2016 denial of motions to dismiss in Juliana v. United States. In their petition, Trump, et al., claim irreparable harm for having to participate in the ordinary pre-trial discovery process and go to trial. The next step in the case would ordinarily be for the Trump administration to face the youth and their scientific evidence at trial, and then later appeal an adverse ruling after a final judgement in the case.
"We look forward to the opportunity to argue this case before the Ninth Circuit so that we can move quickly to trial," Julia Olson, co-counsel for plaintiffs and executive director of Our Children's Trust, said. "The Trump administration should not be able to dodge judicial review of such egregious constitutional infringements of these young people's liberties."
"They are knowingly destroying our climate system and the healthy futures for our young plaintiffs. This administration can respond to the limited discovery we seek, and put on its junk climate science at trial in a court of law. What it can't do is shut the courthouse doors to real constitutional injuries brought by these young people. We believe the Ninth Circuit will be the bulwark against their dodge and evade tactics," Olson added.
"Every week, or even every day, that our trial is delayed is time I spend further worrying about the stability of our climate system and the security of my future," Kelsey Juliana, 21-year-old named plaintiff from Eugene, Oregon, said. "I'm excited for the Ninth Circuit judges to hear from my lawyers, and to have our case in front of them. Another step forward, onwards to climate and constitutional Justice!"
In July, a three judge panel of the Ninth Circuit, consisting of judges Alfred Goodwin, Alex Kozinski and Marsha Berzon, placed a temporary stay on the district court proceedings and ordered briefings on the mandamus petition.
In September, legal scholars, religious, women's, libertarian, and environmental groups, and legal nonprofits filed eight separate amicus curiae (friend of the court) briefs with the Ninth Circuit, displaying resounding legal support for denying the mandamus petition, and allowing the case to proceed to trial.
Judge Aiken and Magistrate Judge Thomas Coffin, of the District Court in Oregon, filed a letter with the Ninth Circuit in August, referring to the issues presented by the youth's case as "vitally important" and stating that they "do not believe that the government will be irreversibly damaged by proceeding to trial."
Through Judge Aiken's order last year, the young plaintiffs secured the following critical legal rulings:
1. There is a fundamental constitutional liberty right to a climate system capable of sustaining human life.
2. The federal government has fiduciary public trust responsibilities to preserve natural resources upon which life depends.
3. The youths' requested remedy (ordering the development and implementation of a national climate recovery plan based on a scientific prescription) is an appropriate remedy if the court finds a violation of the youths' constitutional rights.
Among the facts to be determined at trial are whether the federal government's systemic actions over the past decades enabling climate change have violated the young plaintiffs' constitutional rights.
"What is urgently needed right now is a clear, scientific and constitutional discussion of the irreparable harm that climate change is doing to this nation's youth and the ways we can hold our leaders accountable to begin serious climate recovery efforts," Jacob Lebel, 20 year-old-plaintiff from Roseburg, Oregon, said.
"I am glad that we will have the opportunity to hold this discussion before the Ninth Circuit and I look forward to moving towards a full trial," said Lebel.
Juliana v. United States was brought by 21 young plaintiffs, and Earth Guardians, 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.
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.
Through net metering programs, homeowners who have installed solar energy systems can get utility credits for any electricity their panels generate during the day that isn't used to power home systems. These credits can be "cashed in" to offset the cost of any grid electricity used at night.
Where net metering is available, solar panels have a shorter payback period and yield a higher return on investment. Without this benefit, you only save on power bills when using solar energy directly, and surplus generation is lost unless you store it in a solar battery. However, net metering gives you the option of selling any excess electricity that is not consumed within your home.
Generally, you will see more home solar systems in places with favorable net metering laws. With this benefit, going solar becomes an attractive investment even for properties with minimal daytime consumption. Homeowners can turn their roofs into miniature power plants during the day, and that generation is subtracted from their nighttime consumption.
What Is Net Metering?
Net metering is a billing arrangement in which surplus energy production from solar panels is tracked by your electricity provider and subtracted from your monthly utility bill. When your solar power system produces more kilowatt-hours of electricity than your home is consuming, the excess generation is fed back into the grid.
For homeowners with solar panels, the benefits of net metering include higher monthly savings and a shorter payback period. Utility companies also benefit, since the excess solar electricity can be supplied to other buildings on the same electric grid.
If a power grid relies on fossil fuels, net metering also increases the environmental benefits of solar power. Even if a building does not have an adequate area for rooftop solar panels, it can reduce its emissions by using the surplus clean energy from other properties.
How Net Metering Works
There are two general ways net metering programs work:
- The surplus energy produced by your solar panels is measured by your utility company, and a credit is posted to your account that can be applied to future power bills.
- The surplus energy produced by your solar panels is measured by your home's electricity meter. Modern power meters can measure electricity flow in both directions, so they tick up when you pull from the grid at night and count down when your solar panels are producing an excess amount of electricity.
In either scenario, at the end of the billing period, you will only pay for your net consumption — the difference between total consumption and generation. This is where the term "net metering" comes from.
How Does Net Metering Affect Your Utility Bill?
Net metering makes solar power systems more valuable for homeowners, as you can "sell" any extra energy production to your utility company. However, it's important to understand how charges and credits are managed:
- You can earn credits for your surplus electricity, but utility companies will not cut you a check for the power you provide. Instead, they will subtract the credits from your power bills.
- If your net metering credit during the billing period is higher than your consumption, the difference is rolled over to the next month.
- Some power companies will roll over your credit indefinitely, but many have a yearly expiration date that resets your credit balance.
With all of this in mind, it is possible to reduce your annual electricity cost to zero. You can accumulate credit with surplus generation during the sunny summer months, and use it during winter when solar generation decreases.
You will achieve the best results when your solar power system has just the right capacity to cover your annual home consumption. Oversizing your solar array is not recommended, as you will simply accumulate a large unused credit each year. In other words, you cannot overproduce and charge your power company each month.
Some power companies will let you pick the expiration date of your annual net metering credits. If you have this option, it's wise to set the date after winter has ended. This way, you can use all the renewable energy credits you accumulated during the summer.
Is Net Metering Available Near You?
Net metering offers a valuable incentive for homeowners to switch to solar power, but these types of programs are not available everywhere. Net metering laws can change depending on where you live.
In the U.S., there are mandatory net metering laws in 38 states and Washington, D.C. Most states without a mandate have power companies that voluntarily offer the benefit in their service areas. South Dakota and Tennessee are the only two states with no version of net metering or similar programs.
If net metering is available in your area, you will be credited for your surplus energy in one of two ways:
- Net metering at retail price: You get full credit for each kilowatt-hour sent to the grid. For example, if you're charged 16 cents per kWh consumed, you'll get a credit of 16 cents per kWh exported. This type of net metering is required by law in 29 states.
- Net metering at a reduced feed-in tariff: Surplus electricity sent to the grid is credited at a lower rate. For example, you may be charged 16 cents per kWh for consumption but paid 10 cents per kWh exported. Feed-in tariffs and other alternative programs are used in 17 of the states where retail-rate net metering is not mandatory.
Note: This is just a simplified example — the exact kWh retail price and solar feed-in tariff will depend on your electricity plan.
The Database of State Incentives for Renewables & Efficiency (DSIRE) is an excellent resource if you want to learn more about net metering and other solar power incentives in your state. You can also look for information about solar incentives by visiting the official websites of your state government and utility company.
Other Financial Incentives for Going Solar
Net metering policies are one of the most effective incentives for solar power. However, there are other financial incentives that can be combined with net metering to improve your ROI:
- The federal solar tax credit lets you claim 26% of your solar installation costs as a tax deduction. For example, if your solar installation had a cost of $10,000, you can claim $2,600 on your next tax declaration. This benefit is available everywhere in the U.S.
- State tax credits may also be available depending on where you live, and they can be claimed in addition to the federal incentive.
- Solar rebates are offered by some state governments and utility companies. These are upfront cash incentives subtracted directly from the cost of your solar PV system.
In addition to seeking out solar incentives available to you, you should compare quotes from multiple installers before signing a solar contract. This will ensure you're getting the best deal available and help you avoid overpriced offers and underpriced, low-quality installations. You can start getting quotes from top solar companies near you by filling out the 30-second form below.
Frequently Asked Questions: Solar Net Metering
Why is net metering bad?
When managed correctly, net metering is beneficial for electricity consumers and power companies. There have been cases in which power grids lack the capacity to handle large amounts of power coming from homes and businesses. However, this is an infrastructure issue, not a negative aspect of net metering itself.
In places with a high percentage of homes and businesses using solar panels, surplus generation on sunny days can saturate the grid. This can be managed by modernizing the grid to handle distributed solar power more effectively with load management and energy storage systems.
How does net metering work?
With net metering, any electricity your solar panels produce that isn't used to power your home is fed into your local power grid. Your utility company will pay you for this power production through credits that can be applied to your monthly energy bills.
Can you make money net metering?
You can reduce your power bills with net metering, using surplus solar generation to compensate for your consumption when you can't generate solar power at night and on cloudy days. However, most power companies will not pay you for surplus production once your power bill has dropped to $0. Normally, that credit will be rolled over, to be used in months where your solar panels are less productive.
On very rare occasions, you may be paid for the accumulated balance over a year. However, this benefit is offered by very few electric companies and is subject to limitations.
Attorneys representing 21 youth plaintiffs in the landmark climate case Juliana v. United States filed an answer to the Trump administration's mandamus petition Monday with the Ninth Circuit Court of Appeals.
In their answer, attorneys make clear that the U.S. government already admitted that its actions imperil youth plaintiffs with "dangerous, and unacceptable economic, social, and environmental risks," and that "the use of fossil fuels is a major source of [greenhouse gas] emissions, placing our nation on an increasingly costly, insecure and environmentally dangerous path."
Attorneys for the youth plaintiffs also point to their July 20 deposition of Dr. Michael Kuperberg, head of the federal climate research program, who testified that he is "fearful," that "increasing levels of CO2 pose risks to humans and the natural environment," and that he does not "think current federal actions are adequate to safeguard the future."
The Trump administration originally filed the mandamus petition on June 9, arguing the Ninth Circuit's intervention was necessary due to what it characterized as burdensome discovery issues. On July 28 a panel of judges from the Ninth Circuit ordered youth plaintiffs' attorneys to answer the petition. Now, the Trump administration will have 14 days to reply to the youth plaintiffs' answer before the Ninth Circuit panel makes its ruling. Before the Trump administration filed the mandamus petition, the district court had issued an order for trial to begin on Feb. 5, 2018 in Eugene, Oregon, with Judge Ann Aiken presiding.
Dr. Harold Wanless, an expert geologist for plaintiffs from the University of Miami who has done work on sea level rise for both defendants and Exxon, said in his declaration filed Monday:
"We are headed to catastrophic sea level rise a lot faster than we have anticipated. If we act now, we may not be able to save Naples and Miami and other low-lying regions. But if we do not act now, we have no chance to protect plaintiff Levi's barrier island, and we will also be heading towards losing Orlando and many other places presently above any projected sea level rise."
A declaration submitted by Levi Draheim, 10-year-old Florida resident and youth plaintiff in the case reads:
"I'm scared about how climate change impacts and ocean acidification will continue to harm the beaches and streams in Florida and the wildlife that inhabit them. I can already notice the beaches around me getting smaller because of sea level rise. The reason why I care so much is I basically grew up on the beach. It is like another mother, sort of, to me."
Julia Olson, co-lead counsel for plaintiffs and executive director of Our Children's Trust, avowed:
"What's clear is the burden of climate change impacts faced by our young plaintiffs far outweigh the federal government's exaggerated burden in participating in pretrial discovery. Even so, we have no interest in drawn out discovery and will work with attorneys from the DOJ to move this case expeditiously to trial in February."
Phil Gregory, co-lead counsel for plaintiffs and partner with Cotchett, Pitre & McCarthy, LLP, in Burlingame, California, said:
"The Fifth Amendment provides Americans the fundamental rights to personal security, property, life, and family autonomy and security. The federal court has decided that our youth plaintiffs have properly brought a complaint that the U.S. government's actions in causing climate change infringe upon those rights. Right now, the federal government is trying every trick to deny these youth access to a trial that will protect their rights. We are confident the courts will properly protect the youth of America from the growing climate crisis."
The Ninth Circuit invited the District Court of Oregon to answer the petition as well. In response, the District Court filed via a letter on August 25, referring to the issues presented by the youth's case as "vitally important." The letter, signed by federal Judge Ann Aiken and Magistrate Judge Thomas Coffin, affirmed:
"In short, we do not believe that the government will be irreversibly damaged by proceeding to trial. In our view, any error that we may have committed (or may commit in the future) can be corrected through the normal route of a direct appeal following final judgment. Indeed, we believe that permitting this case to proceed to trial will produce better results on appeal by distilling the legal and factual questions that can only emerge from a fully developed record."
The letter filed by the judges also recognized that the fossil fuel industry's broad denial of all allegations in the complaint was in part responsible for the original scope of the youth plaintiffs' discovery requests. The letter went on to conclude that the withdrawal of three trade association defendants from the case in June should allow the plaintiffs to substantially narrow their discovery requests.
Juliana v. United States was brought by 21 young plaintiffs, and Earth Guardians, 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.
U.S. Magistrate Judge Thomas Coffin issued an order Thursday in the climate lawsuit brought by 21 youth, Juliana v. United States, setting a trial date for Feb. 5, 2018 before U.S. District Court Judge Ann Aiken in Eugene, Oregon.
Juliana v. United States was brought by 21 young plaintiffs and Earth Guardians 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.
Kids Climate Lawsuit Heads to Trial, Judge Denies Trump Administration's Appeal https://t.co/ZhJdVXKf3n @GoFossilFree @ukycc— EcoWatch (@EcoWatch)1497138606.0
"On February 5, 2018, science, not alternative facts, will be presented to the court to establish that our nation's children and grandchildren are being victimized by climate change," said Philip L. Gregory, co-lead counsel for plaintiffs. "Given our excellent panel of experts, and the ongoing problems created by the Trump Administration, we believe the court will use the constitution and the public trust doctrine to protect our climate from further serious damage."
Several of the youth plaintiffs issued statements:
"I'm excited that we have a date now," said Jayden Foytlin, 14, of Rayne, Louisiana. "I think we are all looking forward to our day in court. I feel like we are that much closer to justice."
"The Trump Administration plays directly into the hands of fossil fuel industries while ignoring the impending dangers of climate change and his responsibility as a leader to protect our future," said Nathan Baring, 17, of Fairbanks, Alaska. "Why should the industry bother spending millions on a legal defense when they have a vicious advocate in the White House already fighting for their interests?"
"Despite incessant efforts by government and industry to prevent our case from moving forward, the date is set for trial," said Alex Loznak, 20, of Roseburg, Oregon. "Having seen some of the most damning evidence to be presented at trial, I am confident that our claims will prevail."
The order also released three fossil fuel industry trade associations, the National Association of Manufacturers (NAM), the American Petroleum Institute (API), and the American Fuel and Petrochemical Manufacturers (AFPM), as defendants in the case, without placing any conditions on their withdrawal.
When the youth plaintiffs filed their lawsuit in 2015, they did not name NAM, API or AFPM as defendants. The associations joined together to intervene in November 2015 on the side of the U.S. government defendants, but last month, all three industry groups submitted motions seeking the court's permission to withdraw from the case.
Linda Kelly, NAM general counsel, recently said that because of the shift in administrations, NAM "no longer feel[s] that [its] participation in this case is needed to safeguard industry and [its] workers."
"Over 18 months ago, these fossil fuel associations went to incredible lengths to become defendants so that they could shut down this case," said Julia Olson, co-lead counsel for plaintiffs and executive director of Our Children's Trust. "They failed, and youth prevailed. Now these youth and the top climate experts on the planet can go to trial against the Trump administration."
On June 9, the Trump administration filed a petition for writ of mandamus with the Ninth Circuit Court of Appeals, seeking an extraordinarily rare review of a Nov. 10, 2016 decision by U.S. District Court Judge Ann Aiken to deny its motion to dismiss the case. The Ninth Circuit has not requested the parties to submit briefs on the government's petition, and could deny it without doing so.
The Trump administration filed a writ of mandamus petition with the Ninth Circuit Court of Appeals Friday, seeking an extraordinarily rare review of a Nov. 10, 2016 decision by U.S. District Court Judge Ann Aiken to deny its motion to dismiss Juliana v. United States. Further, the Trump administration is seeking "a stay of proceedings in the district court" while the Ninth Circuit considers its petition.
The Trump administration argues the Ninth Circuit should "exercise its supervisory mandamus powers to end this clearly improper attempt to have the judiciary decide important questions of energy and environmental policy to the exclusion of the elected branches of government."
The U.S. Constitution provides for three separate but equal branches of government, with no exception for energy and environmental policy.
Douglas A. Kysar, the Joseph M. Field '55 Professor of Law at Yale Law School who is not connected with the litigation, but recently co-authored Courting Disaster: Climate Change and the Adjudication of Catastrophe, said:
"Writs of mandamus are reserved for the most extraordinary and compelling situations in which ordinary rules of appellate procedure must be overridden to avoid a manifest injustice. For the Trump Justice Department to even seek a writ of mandamus in the current context is offensive to Judge Aiken, to the entire federal judiciary, and, indeed, to the rule of law itself. The writ should not be granted and we should all question why the Trump administration's lawyers are willing to try such a trick rather than forthrightly defend the case.
"When the Framers divided power within the government, they did it so that the branches could not only check and balance each other, but also poke and prod when necessary. The Juliana litigation is a powerful poke and prod to the entire federal government on the question of climate responsibility. In that sense, Juliana might well be the most important lawsuit on the planet right now and the government knows it. That's why Trump's lawyers are so desperate to avoid an honest fight."
Justice Anthony Kennedy, writing for the Supreme Court's majority in Cheney v. U.S., explained in 2004 that mandamus is a "drastic and extraordinary remedy" reserved for "only exceptional circumstances."
This Trump administration's filing comes just one day after Judge Aiken shut down another rare path to Ninth Circuit review, with an order denying the U.S. government and fossil fuel industry's motions seeking an interlocutory appeal.
"The U.S. Government is running from some of its youngest constituents, and all we're asking for is a plan to preserve our future," said Victoria Barrett, 18, of White Plains, New York, one of 21 youth plaintiffs.
"The U.S. government is trying to use every possible tool they can to avoid trial," Julia Olson, co-lead counsel for plaintiffs and executive director of Our Children's Trust, said. "Because they know applying the law to the facts and science in this case will mean certain defeat for them at trial. If the Trump administration was at all confident it could defend itself at trial, it would be preparing for trial."
Last month, motions were filed by three fossil fuel industry intervenor-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.
"By this writ, the Trump administration insists the federal government can continue to support the fossil fuel system and inflict harm on our children and grandchildren," Phil Gregory, co-lead counsel for plaintiffs and partner with Cotchett, Pitre & McCarthy, LLP in Burlingame, CA, said. "We believe the Court of Appeals will affirm that our Constitution specifically protects our Nation's Posterity. As Judge Aiken wrote, 'the judiciary must not shrink from its role as a coequal branch of government.'"
An in-court case management conference, open to the public, is set for 10 a.m. PST on June 14 at the Wayne L. Morse U.S. Courthouse in Eugene, Oregon.
Juliana v. United States was brought by 21 young plaintiffs, and Earth Guardians, 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.
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 industry intervenor-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.
Fossil Fuel Associations Scramble to Quit Kids Climate Lawsuit Before Discovery Deadline https://t.co/orBLBLnaZy @YaleClimateComm— EcoWatch (@EcoWatch)1495935907.0
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.
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. US climate 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.
Nation's Largest Industrial Trade Association Wants Out of Kids #Climate Lawsuit https://t.co/gKBRom4FIa @billmckibben @NaomiAKlein @350— EcoWatch (@EcoWatch)1495544820.0
"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 to back 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."
After numerous legal efforts trying to get a federal district court in Oregon to throw out a climate lawsuit brought by 21 young people, a defeated National Association of Manufacturers (NAM) filed a motion Monday requesting the court's permission to withdraw from the litigation.
NAM "moves to withdraw as an intervenor—defendant from this case." Based on its pleadings in court, "NAM is the nation's largest industrial trade association representing the manufacturing sector of the United States economy."
"Over 18 months ago, NAM, like the other fossil fuel intervenors, went to great lengths to become a party defendant in this case," Julia Olson, counsel for plaintiffs and executive director of Our Children's Trust, said.
"They claimed their members were seriously threatened by our case. Now faced with significant legal victories by these young plaintiffs, and on the eve of having to take a position on climate science, NAM wants out of this case. We believe the court will determine that there should be consequences for wasting the court's time."
When youth plaintiffs filed their lawsuit in 2015, they did not name the trade associations NAM, American Petroleum Institute or American Fuel and Petrochemical Manufacturers, as defendants. On Nov. 12, 2015, these trade associations joined to intervene the side of the U.S. government defendants, calling the lawsuit a "direct threat to [their] businesses."
The position of these associations was that "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."
In a January 2016 proceeding before Judge Thomas 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 court allowed NAM and its fellow fossil fuel industry associations to become defendants. However, when these intervenor defendants filed their answer to the allegations in youth's complaint, their "one voice" lacked "sufficient knowledge to admit or deny the factual allegations" to take a position on most of the claims in the complaint.
During a March 9 case management conference, intervenor defendants agreed to set forth their positions on the facts in the form of responses to requests for admissions, which Plaintiffs subsequently filed on March 24. When the intervenors had not submitted their responses by April 20, 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 May 25. Now NAM "no longer wishes to participate" in the case, according to Monday's filing.
#NAMKNEW
For more than a decade, NAM was a member of the Global Climate Coalition, a group that led an aggressive lobbying campaign against the scientific consensus that greenhouse gas emissions caused global warming, as Andrew Revkin revealed in the New York Times in 2009.
By way of background, NAM, like the American Petroleum Institute and their common member, ExxonMobil, had its own long-standing knowledge of climate danger. For example, NAM's Environmental Quality Committee published a document in 1975, Air Quality Control: National Issues, Standards, and Goals, which included a section on carbon dioxide, concluding:
"And it is believed that the huge amounts of carbon dioxide emitted each day are very slowly heating the Earth's atmosphere. In time, some scientists fear this scarcely perceptible rise in temperatures may cause the partial melting of the polar icecaps and extensive flooding throughout the world."
NAM's Environmental Quality Committee published a document in 1975 called Air Quality Control: National Issues, Standards, and Goals, which included a section on carbon dioxide. Our Children's Trust
It is yet to be determined whether the American Petroleum Institute and the American Fuel and Petrochemical Manufacturers will join NAM in seeking to leave the case. Counsel for intervenor defendants has indicated to the court it is possible all three association may seek leave to withdraw.
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.
U.S. Magistrate Judge Thomas Coffin emphatically recommended Monday denial of Trump administration and fossil fuel industry defendants' motions seeking to derail the "youthvgov" climate case from trial with a rare early appeal. Such early appeals are "hen's-teeth rare," noted Judge Coffin.
Further, Judge Coffin denied the Trump administration's motion, supported by the fossil fuel industry, to put the trial on hold pending the outcome of the early appeal attempt. Youths' attorneys argued that any delay in getting to trial would irreversibly prejudice the youth in securing and protecting their fundamental constitutional rights.
From Judge Coffin's findings and recommendation:
"The court may make findings that define the contours of plaintiffs' constitutional rights to life and a habitable atmosphere and climate, declare the levels of atmospheric CO2 which will violate their rights, determine whether certain government actions in the past and now have and are contributing to or causing the constitutional harm to plaintiffs, and direct the federal defendants to prepare and implement a national plan which would stabilize the climate system and remedy the violation of plaintiffs rights.
"... [U.S. government] defendants and Intervenors ... underestimate the nature of the danger allegedly created by their actions. The taking of evidence will flesh out those critical issues. The current posture of the case is such that any appeal would be premature."
In his conclusion, Judge Coffin wrote that the hypothetical questions the Trump administration and fossil fuel industry defendants wish to present to the appellate court "would put the cart before the horse, and thus fail to satisfy the standards for interlocutory appeal."
"It's time for the defendants to accept they are going to trial and not try to continue bending the rule of law to delay a judgment in this case," Julia Olson, plaintiffs' counsel and Our Children's Trust's executive director, said. "President Trump must accept that the courts do not do his bidding, and in a court of law, 'alternative facts' are considered perjury."
In March, the Trump administration and fossil fuel defendants requested that the federal district court in Oregon allow the Ninth Circuit Court of Appeals the opportunity to review Judge Ann Aiken's Nov. 10, 2016 order before the trial even takes place. The defendants had also requested that appeal be expedited, and that the trial be put on hold if the appeal was granted. Judge Coffin recommended that all of those requests be denied.
Procedurally, the Trump administration and fossil fuel industry defendants' have until May 15 to file specific written objections with the court to Judge Coffin's recommendations. Thereafter, youth's attorneys will have 14 days from when those objections are filed to respond to them. Per federal rules of procedure, Judge Aiken, informed by Magistrate Judge Coffin's recommendation, holds the power to decide whether the Ninth Circuit has an opportunity to grant the defendants' requests for an interlocutory appeal of her November decision.
Scholars agree that defendants have little chance to obtain their rare appeal especially in light of the Magistrate Judge's opinion.
"This is a well-reasoned opinion and it will now go to Judge Aiken for approval," Prof. Mary Wood, from the University of Oregon School of Law, said. "There's really nothing more for the Trump administration and fossil fuel defendants to argue at this point. They should just get ready for trial."
In spite of defendants' desperate attempts to delay a historic climate trial, youth plaintiffs and their lawyers continue to prepare for it.
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.
Attorneys representing 21 youth in the Juliana v. United States climate lawsuit have filed opposition briefs to Trump administration and fossil fuel industry defendants' motions that sought again to derail the case from trial. In their filings, the youths' attorneys argue that "any delay in resolving the merits of this case irreversibly prejudices the youth plaintiffs in securing and protecting their fundamental constitutional rights."
The attorneys filed three responses Monday. The first response was to the U.S. government's request that U.S. District Court Judge Ann Aiken allow the Ninth Circuit Court of Appeals the opportunity to review her Nov. 10, 2016 order denying motions to dismiss before the trial even takes place.
From the youth's brief:
"Federal Defendants' argument that 'no relief could be obtained against the President,' ... is substantially similar to one flatly rejected by the Ninth Circuit as 'contrary to the fundamental structure of our constitutional democracy' in Washington v. Trump, in which the current president argued that he had 'unreviewable authority' with respect to immigration policy 'even if those actions potentially contravene constitutional rights and protections.'"
The second filing responded to fossil fuel defendants' similar motion for an early appeal, which complained that "complex scientific debate ... swirls around the issues raised by the plaintiffs' lawsuit." The third filing was in response to both the Trump administration and the fossil fuel defendant's attempts to put the trial on hold, in the event Judge Aiken grants their requests and the Ninth Circuit agrees to step in.
The fossil fuel defendants, members of trade associations American Petroleum Institute (formerly directed by now Secretary of State, Rex Tillerson), American Fuel and Petrochemical Manufacturers and National Association of Manufacturers, are represented by Sidley Austin, a law firm "whose diverse client base includes companies that develop, produce, transport, process and market energy." In 2016 alone, Sidley received $1.928 billion in revenue.
Per federal rules of procedure, Judge Aiken, informed by Magistrate Judge Thomas Coffin's recommendation, holds the power to decide whether the Ninth Circuit has an opportunity to grant the defendants' requests for an interlocutory appeal of her November decision.
"The Trump administration and the fossil fuel interests have acknowledged our lawsuit is a threat to their profit-seeking motives," Tia Hatton, 20, youth plaintiff from Eugene, Oregon, said.
"Their move to appeal Judge Aiken's historic decision to hear our case is nothing more than an extension of their personal interests and preposterous climate denial. These interests render their moronic dismissal of the merit of the constitutional rights that my co-plaintiffs and I, as well as future generations have to a stable climate system."
Jacob Lebel, 20, youth plaintiff from Roseburg, Oregon, agreed. "It's laughable and darkly ironic to hear our government argue that it will be irreparably harmed by our request that it produce and preserve documents that deal with climate change," he said.
"What about the irreparable harms that President Trump's administration is inflicting upon us youth with its reckless promotion of the fossil fuel industry and attacks on climate science?"
On Friday, attorneys representing the youth served legal requests for documents to the U.S. Dept. of Agriculture, U.S. Dept. of Defense and U.S. Dept. of State, just a few of the agency defendants in the case. The requests are a timely part of the discovery process, aimed at getting to trial by fall as Judge Coffin has requested.
Last month, attorneys representing the youth served requests for production of documents to the U.S. government and the American Petroleum Institute asking both defendants to turn over any of Secretary of State Rex Tillerson's pseudonym emails in their custody (emails sent from "[email protected]") by April 16.
"The Trump administration appears to labor under the mistaken belief that its decisions are beyond the jurisdiction of constitutional review," Julia Olson, plaintiffs' counsel and executive director of Our Children's Trust, said. "As we've already seen, when President Trump puts travel bans in place that violate constitutional rights, courts can and will block those actions. When he takes alarming actions that deny our youth plaintiffs their fundamental rights to a safe climate, courts can and will block those actions as well."
A telephonic case management conference, with Judge Coffin and attorneys representing all the parties, is set for April 7 at 10 a.m. PST.
In a 2-1 decision Thursday, the Colorado Court of Appeals reversed the Colorado Oil and Gas Conservation Commission's order denying a youth-brought rulemaking petition against fracking and a lower court's order upholding the denial. The court remanded the case to the district court and the commission, finding that the commission erred in its interpretation of Colorado law:
"We therefore conclude that the commission erred in interpreting [the Oil and Gas Conservation Act] as requiring a balance between development and public health, safety and welfare."
"The clear language of the act ... mandates that the development of oil and gas in Colorado be regulated subject to the protection of public health, safety and welfare, including protection of the environment and wildlife resources."
The commission had argued that the Oil and Gas Conservation Act required it to strike a balance between the regulation of oil and gas operations and protecting public health, the environment and wildlife resources.
The six plaintiffs in the case are Xiuhtezcatl Martinez, Itzcuahtli Roske-Martinez, Sonora Brinkley, Aerielle Deering, Trinity Carter and Emma Bray. All are members of the Boulder-based youth group Earth Guardians.
The youth hand-delivered their petition for rulemaking in November 2013 to the commission. Their petition asked the commission to develop and implement a rule to stop the permitting of fracking until and if, oil and gas development can be done without causing harm to humans and without impairing Colorado's natural resources, including atmospheric resources and climate change.
"By its decision today, the court has concluded that the commission has full statutory authority to adopt Petitioner's proposed rule," Julia Olson, plaintiffs' counsel and executive director of Our Children's Trust, said. "The commission can no longer decide to prioritize oil and gas development over the health and safety of Coloradans. This is an enormous victory for these youth. We look forward to helping the youth of Colorado go back before the commission on remand."
Martinez, youth director of Earth Guardians, shared his excitement on the win. "Our movement to fight for the rights of people and our environment is evolving," he said.
"From the streets to the courtroom, the voices of the younger generation will be heard and the legal system is a tool for our resistance. Small wins build up to create massive change. I'm very optimistic about the potential this lawsuit has to protect my Colorado. Now more than ever, we will see people reclaiming the power."
Martinez is one of 21 youth plaintiffs in Juliana v. United States, a climate case brought in federal court and headed to trial this fall in U.S. District Court in Oregon. The American Petroleum Institute (API) is an intervenor defendant in both Martinez's Colorado and federal case. API represents the interests of the oil and gas industry supporting the commission in Colorado and the Trump administration in federal court. On Friday, attorneys representing Martinez and his co-plaintiffs in that case, served API and the federal government with requests for emails to or from Secretary of State Rex Tillerson's pseudonym,Wayne Tracker.
Climate Kids Demand Feds to Turn Over 'Wayne Tracker' Emails https://t.co/j6xZFVkmYH @climate_rev @sandbagorguk— EcoWatch (@EcoWatch)1490130905.0
Judges ruling on the side of youth plaintiffs were Judge Terry Fox and Judge JoAnn Vogt, with Judge Laurie Booras dissenting. In Booras' dissent, she wrote:
"I respectfully dissent from the majority's conclusion that the statutory scheme of the Oil and Gas Conservation Act (the Act), §§ 34-60-101 to -130, C.R.S. 2016, requires protection of public health, safety and welfare as a determinative factor, instead of requiring balancing between those considerations and oil and gas production."
In this Colorado case, however, the youth won their right to have their health, safety and welfare take precedence over oil and gas drilling. They will head back to district court with the support of Coloradans from across the state, hundreds of whom marched in support of their case prior to their hearing before the Colorado Court of Appeals last month.
Martinez v. Colorado Oil and Gas 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.
Attorneys representing 21 youth plaintiffs in Juliana v. United States served request for production of documents to the U.S. government and the American Petroleum Institute (API), asking both defendants to turn over the "Wayne Tracker" emails, as part of discovery in the climate case.
As ExxonMobil explained Tuesday, the email address pseudonym "was put in place for secure and expedited communications between select senior company officials and the former chairman for a broad range of business-related topics." New York Attorney General Eric Schneiderman's office stated in a March 13 court filing that Rex Tillerson used the "[email protected]" pseudonym "to send and receive materials regarding important matters, including those concerning to the risk-management issues related to climate change …"
Fossil Fuel Defendants Join Trump in Move to Appeal Groundbreaking Climate Lawsuit https://t.co/975ggb5BYu @foeeurope @globalactplan— EcoWatch (@EcoWatch)1489317607.0
While risk-management issues related to climate change are important to the New York Attorney General's investigation, attorneys representing youth plaintiffs suspect the emails will also reveal the deep influence of the fossil fuel defendants over U.S. energy and climate policies and the defendants' private acknowledgement that climate change was caused by their product, both of which are important to the youth's case. To the latter point, the fossil fuel defendants have refused to take a position on whether climate change is caused by burning fossil fuels, even when pressed by federal judges to answer that question.
As reported by Bloomberg, New York Attorney General Eric Schneiderman's office stated that Sec. of State Rex Tillerson used a pseudonym, "[email protected]," for emails while he served as ExxonMobil's CEO. Because ExxonMobil is a member of API and Tillerson served on the Board of Directors of API through December, he was a player in Juliana v. United States even before he was confirmed as Secretary of State, which caused him to become a named government defendant.
Plaintiffs are asking the U.S. government and API defendants to turn over any of Tillerson's pseudonym emails in their custody by April 16.
During a Feb. 7 case management conference, U.S. District Court Magistrate Judge Thomas Coffin relayed his understanding about the discovery youth plaintiffs are seeking to Frank Volpe, Sidley Austin attorney representing API:
"... there's a subset of their substantive due process case that involves what did you know and when did you know it and did someone cover it up, did they create this danger …"
"When looking for evidence of a cover up, emails from Rex Tillerson's pseudonym about climate change are just the kind of evidence the court needs to see," Julia Olson, plaintiffs' counsel and executive director of Our Children's Trust, said.
The 21 youth plaintiffs, ages 9 to 21, received national publicity last week about their case in The Washington Post and National Geographic.
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.