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Trump Administration Seeks 'Drastic Remedy' to Derail Kids Climate Lawsuit
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.
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By Tracy L. Barnett
Sources reviewed this article for accuracy.
For Sicangu Lakota water protector Cheryl Angel, Standing Rock helped her define what she stands against: an economy rooted in extraction of resources and exploitation of people and planet. It wasn't until she'd had some distance that the vision of what she stands for came into focus.
Last week, the Peruvian Palm Oil Producers' Association (JUNPALMA) promised to enter into an agreement for sustainable and deforestation-free palm oil production. The promise was secured by the U.S. based National Wildlife Federation (NWF) in collaboration with the local government, growers and the independent conservation organization Sociedad Peruana de Ecodesarrollo.
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.
"We propose a reconceptualization of retreat as a suite of adaptation options that are both strategic and managed," the paper states. "Strategy integrates retreat into long-term development goals and identifies why retreat should occur and, in doing so, influences where and when."
The billions of dollars spent to rebuild the Jersey Shore and to create dunes to protect from future storms after Superstorm Sandy in 2012 may be a waste if sea level rise inundates the entire coastline.
"There's a definite rhetoric of, 'We're going to build it back better. We're going to win. We're going to beat this. Something technological is going to come and it's going to save us,'" said A.R. Siders, an assistant professor with the disaster research center at the University of Delaware and lead author of the paper, to the New York Times. "It's like, let's step back and think for a minute. You're in a fight with the ocean. You're fighting to hold the ocean in place. Maybe that's not the battle we want to pick."
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."
Leaked documents show that Jair Bolsonaro's government intends to use the Brazilian president's hate speech to isolate minorities living in the Amazon region. The PowerPoint slides, which democraciaAbierta has seen, also reveal plans to implement predatory projects that could have a devastating environmental impact.