[image: | Plaintiffs in the Juliana v United States lawsuit attend court hearing in June 2019 Robin LoznakAP | MR Online]Plaintiffs in the Juliana v. United States lawsuit attend court hearing in June 2019. (Photo: Robin Loznak/AP) Biden is preparing to crush a historic climate change lawsuit <mronline.org/2022/05/30/biden-is-preparing-to-crush-a-historic-climate-change-lawsuit
> *Originally published: *The Lever <www.levernews.com/biden-is-preparing-to-crush-historic-climate-change-lawsuit/
> on May 26, 2022 by Julia Rock (more by The Lever <mronline.org/guest-author/cap-the-lever/
>) | <www.facebook.com/TheLeverNews> (Posted May 30, 2022) Climate Change <mronline.org/subject/climate-change/>, Empire <mronline.org/subject/empire/>, Environment <mronline.org/subject/environment/>, Movements <mronline.org/subject/movements/>Americas <mronline.org/geography/americas/>, United States <mronline.org/geography/united-states/>Newswire <mronline.org/category/newswire/>Department of Justice (DOJ) <mronline.org/tag/department-of-justice-doj/>, Juliana v. U.S. <mronline.org/tag/juliana-v-u-s/>, President Joe Biden <mronline.org/tag/president-joe-biden/>
Any day now, a federal district court is expected to deliver a ruling that would allow a historic climate change lawsuit to proceed to trial.
If and when the case moves forward, however, it faces a major obstacle: President Joe Biden’s Justice Department.
The lawsuit, *Juliana v. United States*, was brought by 21 young plaintiffs in 2015 and seeks to establish a federal, constitutional right to a livable planet. If the case is successful, any federal policies that enable more fossil fuel development could be challenged as unconstitutional.
But the Obama and Trump administrations both vehemently fought the lawsuit, and now those close to the case say that Biden’s Department of Justice (DOJ) has indicated it will also use every procedural tool at its disposal to prevent the lawsuit from ever getting a trial*.*
“I have asked [them] very directly, if we win this motion, and we can move forward with the case, do you intend to go to trial?” Julia Olson, the lead plaintiff’s lawyer, told *The Lever.*
Their response has always been something along the lines of, ‘It is our position that the court doesn’t have jurisdiction and that this case should never go to trial.’
*Juliana v. United States* was ambitious from the start. The plaintiffs are asking a federal court system, stacked with right-wing judges backed by the fossil fuel industry <www.levernews.com/koch-machine-pressing-supreme-court-to-crush-epa/>, to enshrine a constitutional right to a livable climate. But the plaintiffs point to what they’ve pulled off thus far as evidence it’s achievable.
For example, Oregon District Court Judge Ann Aiken wrote in a procedural ruling <static1.squarespace.com/static/571d109b04426270152febe0/t/5824e85e6a49638292ddd1c9/1478813795912/Order+MTD.Aiken.pdf> on the case in 2016, “I have no doubt that the right to a climate system capable of sustaining human life is fundamental to a free and ordered society.” That was the first time a federal U.S. judge declared that such a constitutional right existed.
The case has widespread support from public officials: Last year, six state attorneys general filed an amicus brief <ag.ny.gov/sites/default/files/juliana_v._united_states_15-cv-1517_final_amicus_brief_as-filed.pdf> in support of the case, and 48 congresspeople wrote <static1.squarespace.com/static/571d109b04426270152febe0/t/61969348e67cea45753bfa96/1637258057213/PR+for+Letters+to+President+%26+DOJ+Supporting+Juliana+v+US_OCT_2021.11.18.pdf> to Biden in support of the plaintiffs. The matter is also beginning to capture public attention; the lawsuit is the subject of a newly released *Netflix * documentary, *YOUTH v GOV* <www.youthvgovfilm.com/>.
After the Ninth Circuit Court of Appeals dismissed the case <www.vox.com/2020/1/17/21070810/climate-change-lawsuit-juliana-vs-us-our-childrens-trust-9th-circuit> in 2020 because it concluded the plaintiffs lacked standing, the *Juliana* plaintiffs revised their complaint. Now, parties are waiting on a ruling from Aiken about whether the revised complaint addresses the Ninth Circuit Court’s concerns–a ruling that the plaintiffs’ lawyers expect will be favorable, allowing the case to again proceed.
But these same lawyers say they expect the Biden administration to fight them every step of the way, just like his presidential predecessors.
“There was zero shift when Biden took office, zero shift from the Trump administration,” said Olson.
Developments like this have been eye-opening for the young plaintiffs involved–such as Nathan Baring of Fairbanks, Alaska, who joined the lawsuit when he was 15 years old. Baring, now 22 and recently graduated from college in Minnesota, said his participation in the case “helped me grow up really quickly”–and not necessarily in a good way.
“I’ve realized climate change isn’t a partisan issue–I don’t mean that in a singsongy, everyone is supporting it way,” he told *The Lever. *“I mean the exact opposite.” Watching President Barack Obama, then President Donald Trump, and now Biden attempt to crush the lawsuit taught Baring a valuable lesson: “Just because a Democrat is in office, doesn’t mean that we suddenly need to stop fighting,” he said.
I stopped putting a kind of blind faith in the party label.
The Justice Department did not respond to a request for comment. On The Shadow Docket
In 2015, the young *Juliana *plaintiffs, with the support of the environmental non-profit Our Children’s Trust, sued the Obama administration for pursuing policies that advanced fossil fuel expansion while knowing those policies threatened the habitability of the planet.
“For over fifty years, the United States of America has known that Carbon Dioxide (‘CO2’) pollution from burning fossil fuels was causing global warming and dangerous climate change, and that continuing to burn fossil fuels would destabilize the climate system on which present and future generations of our nation depend for their wellbeing and survival,” the original *Juliana *complaint began.
Defendants also knew the harmful impacts of their actions would significantly endanger Plaintiffs. Despite this knowledge, Defendants continued their policies and practices of allowing the exploitation of fossil fuels.
Over the course of the next six years, the Obama and Trump administrations fought tooth and nail to delay the case and block it from ever going to trial.
After the case was filed in a federal court in Eugene, Oregon, Obama’s DOJ asked the court to dismiss the case. But in 2016, Aiken denied the government’s request, noting,
To hold otherwise would be to say that the Constitution affords no protection against a government’s knowing decision to poison the air its citizens breathe or the water its citizens drink.
When Trump took office, his Justice Department repeatedly appealed Aiken’s ruling to the federal circuit courts and the Supreme Court–which handled those appeals on its notorious shadow docket <harvardlawreview.org/wp-content/uploads/2019/11/123-163_Online.pdf> .
The Supreme Court uses the shadow docket for supposed emergency actions, such as death penalty cases <www.scotusblog.com/2021/09/abortion-the-death-penalty-and-the-shadow-docket/>, so the matters can avoid the lengthy briefing and public hearing processes of typical Supreme Court cases. Opinions on shadow docket actions are not published, and the justices’ votes are usually usually not made public. Over the past few years, the court has also leaned on the shadow docket <www.eenews.net/articles/supreme-court-shadow-docket-casts-pall-on-environmentalists/> to quietly stop climate policy from taking effect–including Obama’s signature environmental legislation, the Clean Power Plan.
But the *Juliana *case stands out even among climate litigation: It has faced six rulings on the shadow docket–more than any other federal lawsuit. Those behind the lawsuit say this development illustrates the fossil fuel industry’s capture of American politics.
“The U.S. Solicitor General and U.S. Department of Justice have together authorized what appears to be the most exceptional of legal tactics more often in *Juliana v. U.S.* than in any other case in history,” said Olson.
They have authorized the filing of an apparently unprecedented six petitions for writ of mandamus in *Juliana v. U.S.*, to keep the 21 youth plaintiffs’ evidence of our government’s unconstitutional complicity in causing the climate crisis from ever seeing the light of day.
The *Juliana* plaintiffs hoped that with Trump out of the picture, the lawsuit might finally see the light of day. But instead they found that during settlement negotiations last fall, the Biden administration was just as stubborn in its approach to the case.
“After months of good-faith efforts on the part of the youth plaintiffs to meet with representatives of the Biden Administration authorized to reach a meaningful settlement, the plaintiffs saw no reason to continue to pursue settlement discussions until the decision-makers for the federal defendants come to the settlement table in good faith,” Olson’s co-counsel, Phillip Gregory, told *The Lever.*
Now they are awaiting a ruling from Aiken on their motion to proceed to trial. What The Government Knew
While there has been a substantial uptick in climate-related litigation over the past five years, the *Juliana* case is different from other U.S. climate lawsuits in at least two substantial ways.
First, while most climate-related litigation targets the fossil fuel industry for misleading the public or causing irreversible harm, this case names the federal government as the perpetrator. (Of course, fossil fuel industry influence plays a key role–just four oil companies spent nearly $375 million lobbying <oversight.house.gov/news/press-releases/committee-analysis-of-fossil-fuel-industry-s-lobbying-reveals-public-praise-for> the federal government in the past decade.)
In particular, according to the suit, the federal government has limited the due process rights of its citizens by subsidizing and passing regulations to enable fossil fuel expansion for decades, all while knowing about the potentially catastrophic consequences of that development.
Evidence of what the federal government has known about climate change for the past five decades is detailed in a legal brief written by Gus Speth, an environmental lawyer who co-founded the Natural Resources Defense Council and, before that, led the Council on Environmental Quality under President Jimmy Carter.
Speth’s brief is littered with examples of government and independent scientific reports, dating back from before the Carter administration, detailing the evidence that burning fossil fuels was contributing to global warming and, if not stopped, would have catastrophic consequences.
For example, President Ronald Reagan’s Environmental Protection Agency (EPA) issued two reports on global warming caused by burning fossil fuels. One of the reports–titled “Can We Delay A Greenhouse Warming?”–predicted “an increase in temperatures of 2 degrees celsius by 2040, a temperature increase that, in EPA’s assessment, was guaranteed to produce substantial climatic consequences, including disastrous flooding,” according to Speth’s brief. That report attributed most of the warming to burning fossil fuels, and suggested ending coal use by the year 2000.
Reagan, of course, didn’t make much of this warning. His administration worked to dismantle the federal government’s regulatory authority over such matters, including slashing and burning environmental laws <grist.org/article/2011-02-07-reagan-helped-save-the-ozone-layer-but-ruined-americas/> and cutting funding <psmag.com/environment/ronald-reagan-extinguished-solar-power-66874> for Carter’s solar energy program. But it wasn’t just Reaganites who ignored the warnings of scientists and continued to exacerbate the problem.
“Until Biden, every Democratic administration–not to mention the Republican ones–was enthusiastic about fossil fuels,” Speth told *The Lever.*
We should never think that during those 40 years, from 1980 to 2020, that the Democrats were on the right track in terms of getting out of the fossil fuel business.
Speth pointed out that Carter had a renewable energy goal and spoke about the need for the U.S. to transition away from fossil fuels to achieve energy independence amid the 1979 oil crisis. Now, more than 40 years later, observers are saying the same thing in the wake of the Russian invasion of Ukraine, which has similarly caused a massive spike in energy prices. In The Public Trust
The second way the *Juliana *case stands out is that the plaintiffs are arguing that the federal government’s refusal to address global warming is in violation of the U.S. Constitution. Most climate cases instead argue that environmental threats violate particular legal statutes, such as the Clean Air Act or Endangered Species Act.
The plaintiffs’ unique approach is based on the idea that the government has a more general duty to protect natural resources–a concept that rests on legal principles developed by Mary Wood, a professor at the University of Oregon law school.
Wood has argued <papers.ssrn.com/sol3/papers.cfm?abstract_id=4017861> that the government has an obligation to ensure a livable planet because of the “public trust doctrine,” a common-law principle that the U.S. Supreme Court declared exists at the state level in a seminal 1892 case <supreme.justia.com/cases/federal/us/146/387/> involving the Illinois Central Railroad company. The public trust doctrine stipulates that the government is the steward of the nation’s natural resources, upon which life, liberty, and the pursuit of happiness depend.
Invoking the public trust doctrine in this case is a reflection of the gravity of the climate disaster, said Wood.
“There’s no way statutory law alone can solve this climate crisis,” Wood told *The Lever.*
They’re too narrow. They could do something if they were enforced, but the administration has not enforced them well over time.
Instead, according to Wood, enshrining the public trust doctrine in environmental case law could form a constitutional basis for requiring the government to rapidly reduce carbon emissions.
As Wood noted <papers.ssrn.com/sol3/papers.cfm?abstract_id=4017861> in a journal article on the matter,
In this framework, survival resources remain quintessential public property belonging to posterity, and government’s clear responsibility is to manage such ecological wealth strictly for the endurance of society itself, for the benefit of both present and future citizens–not for the advantage of private parties or profiteers who may seek to despoil the trust and appropriate it for their own purposes.
Baring, the young plaintiff from Fairbanks, is already seeing the impacts of his government violating that public trust. He explained that the Chinook winds, which carry warm air from the mainland United States up north through Canada and Alaska, have become more destructive due to climate change, and are increasingly wreaking havoc on his hometown. This winter, the winds caused such dramatic temperature swings in Alaska that the state Department of Transportation referred to the event <www.bbc.com/news/world-us-canada-59820999> as “Icemageddon.”
“The temperature can go from below zero to above freezing in a day, and then it will rain, and refreeze overnight,” he said.
There will usually be wind accompanying it, and when the trees are already weighed down by snow, all it needs is a 40 mile-per-hour wind and then trees fall on power lines and roads are impassable. Roofs cave in because of the weight.
When asked about the future–the “posterity” that Wood deploys in her legal arguments–Baring shifted the conversation back to the present. He graduated college earlier this month, and is returning to Alaska to continue the climate fight.
“There’s so much dualism, especially in my generation, because we don’t have very much power and we are watching everything be gambled away,” he said.
But I always come back to this moment and think, ‘Well, what’s my obligation to change the trajectory, right now?’ This is our generation’s work to do.
*Julia Rock* is a reporter, public records requester and researcher.