Quantcast
Environmental News for a Healthier Planet and Life

WATCH LIVE: Can the Courts Bring About a Climate Fix? Three Judges Are About to Decide

Climate

By John Light

Editor's note: Watch the oral arguments live beginning at 1 p.m. EST above.

Three judges in San Francisco potentially have the power to decide how the U.S. government deals with climate change. Monday, 21 young Americans will make the case that President Trump has endangered their future by aiding and abetting the dirty industries responsible for the global crisis. And they will argue that they can hold him legally accountable.


Trump and his predecessors in the Oval Office, these young Americans claim, have not only let climate change occur, they've encouraged it. Despite research going back to the mid-20th century that pumping carbon dioxide into the atmosphere would destabilize the climate, they say the government incentivized the companies that did so through such programs as fossil-fuel subsidies.

Thery further attest that Donald Trump has upped the ante, with his administration outlining plans to lend a helping hand to the coal companies whose CEOs have donated to his campaign—regardless of the dirty fuel's dim future prospects—and promoting fossil fuels internationally.

The 21 young plaintiffs originally filed their suit against President Obama in 2015, but Trump inherited it, and Justice Department lawyers quickly redoubled efforts begun by the Obama administration to have the case dismissed.

Whether they can will be decided following Monday's hearing: A lower court is set to hear the youth's arguments in February, and the Trump administration has appealed to a higher court, the 9th Circuit, to throw the case out before it goes to trial.

In November 2016, days after the election, District Court Judge Ann Aiken allowed the case to proceed. The Trump administration's decision to ask a higher court to weigh in is highly unusual.

But so, too, is the young plaintiffs' suit, which seeks a judicial solution to climate change, a crisis that is growing increasingly urgent and that the other branches of the government have failed to adequately address. The suit argues both that the government cannot put kids in harm's way by encouraging fossil-fuel production, but also that the earth's atmosphere is a public trust that the government has failed to protect.

U.S. Deputy Assistant Attorney General Eric Grant, who was appointed to work in the Justice Department's Environment and Natural Resources Division last April, will be representing the government. Grant replaces Jeffrey Wood, an acting assistant attorney general and former coal lobbyist who was working on the case last spring. Formerly a California-based lawyer, Grant clerked for conservative Supreme Court Justice Clarence Thomas and the late Chief Justice Warren Burger.

Three fossil-fuel industry lobbying groups, meanwhile, have quit the suit. After the young plaintiffs filed their initial lawsuit against the Obama administration in 2015, the American Petroleum Institute, the American Fuel and Petrochemical Manufacturers and the National Association of Manufacturers joined as co-defendants, challenging the case in court. But after November 2016, when a court gave the plaintiffs the green light to proceed to trial, the lobbying groups bailed, claiming that the Trump administration would more adequately defend their interests than the Obama administration.

Interestingly, although Trump himself has spoken extensively of his doubts on climate change ("global warming hoax," etc.), his legal team assigned to this case has not denied the reality of the threat during recent proceedings. Instead, they've sought to wriggle out of the case on the grounds that what the young people are asking for—both in terms of their legal remedy and in terms of discovery—is overly broad. The U.S. may be a rogue state when it comes to climate change—the only one no longer on board with the Paris agreement—but, the government's attorneys argue, that's not their problem. The Constitution, they say, says nothing about climate change.

In its briefing to the court last June, the government wrote:

The Supreme Court has recently emphasized how, under established separation-of-powers principles, Congress, through legislation, defines the EPA's authorities and duties regarding the control of greenhouse gas emissions, while the executive executes them … There is no room in the constitutional structure for a federal court to take on the role of overseeing the propriety of all governmental actions that may be viewed as contributing to the buildup of CO2 in the atmosphere.

But the government's approach to the case may change. As E&E News reported earlier this month, the Justice Department has been speaking with scientists who have been critical of the case or who have expressed dissenting views on climate change, which may indicate DOJ lawyers plan to put on trial the science behind climate change.

The suit also comes at a time when the lack of a presidential or legislative response to climate change has made the U.S. unique in a world that has at least acknowledged the necessity of action. As a result, environmentalists and legal scholars alike increasingly look to the courts for a solution. Judge Ann Aiken's decision to let the suit proceed, days after Trump won election, "was a ray of sunshine in what was a very dark day for the environmental community," Michael Burger, the executive director of Columbia University's Sabin Center for Climate Change Law, told BillMoyers.com.

Trump's climate change-blind policies could "make it more likely the courts will step into this situation," David Bookbinder, chief legal counsel for the libertarian Niskanen Center, told Bloomberg Environment. Trump's election, lead plaintiff Kelsey Juliana told us in May, "has really lifted our case up and given our case even more importance and urgency."

In the short term, it comes down to the three 9th Circuit judges who will hear the case Monday. Two are Clinton nominees, and the third, Alex Kozinski, is a Reagan nominee. It's unclear what effect, if any, allegations of inappropriate sexual misconduct by six court staffers against Kozinski, reported by The Washington Post Friday, will have on the hearing.

John Light is a reporter and producer for the Moyers team. His work has appeared at The Atlantic, Grist, Mother Jones, Salon, Slate, Vox and Al Jazeera, and has been broadcast on Public Radio International. He's a graduate of Columbia Graduate School of Journalism. You can follow him on Twitter at @LightTweeting.

Reposted with permission from our media associate Moyers & Company.

EcoWatch Daily Newsletter

Yellowstone National Park closed to visitors on March 24, 2020 because of the Covid-19 virus threat. William Campbell-Corbis via Getty Images

When the novel coronavirus started to sweep across the country, the National Park Service started to waive entrance fees. The idea was that as we started to practice social distancing, Americans should have unfettered access to the outdoors. Then the parking lots and the visitor centers started to fill up, worrying park employees.

Read More Show Less
Mike Pence and Donald Trump hold a press conference about the coronavirus outbreak in the press briefing room at the White House on March 23, 2020 in Washington, DC. Drew Angerer / Getty Images

By John R. Platt

Both eyes open. Look for potential threats coming from all sides. Be prepared to change course at a moment's notice.

Read More Show Less
Sponsored
Looking across the Houston Ship Canal at the ExxonMobil Refinery, Baytown, Texas. Roy Luck, CC BY 2.0

By Nick Cunningham

A growing number of refineries around the world are either curtailing operations or shutting down entirely as the oil market collapses.

Read More Show Less
Traffic moves across the Brooklyn Bridge on Aug. 2, 2018 in New York City. Drew Angerer / Getty Images

The Trump administration is expected to unveil its final replacement of Obama-era fuel-efficiency standards for cars and light trucks Tuesday in a move likely to pump nearly a billion more tons of carbon dioxide into the atmosphere over the lifetime of those less-efficient vehicles.

Read More Show Less
U.S. President Donald Trump listens as Anthony Fauci, Director of the National Institute of Allergy and Infectious Diseases speaks in the Rose Garden for the daily coronavirus briefing at the White House on March 29 in Washington, DC. Tasos Katopodis / Getty Images

By Jake Johnson

Just over a month after proclaiming that the number of coronavirus cases in the U.S. would soon "be down to close to zero," President Donald Trump said during a press briefing on the White House lawn Sunday that limiting U.S. deaths from the pandemic to between 100,000 and 200,000 people would mean his administration and the country as a whole did "a very good job."

Read More Show Less