More than a decade ago, the Supreme Court rebuked the George W. Bush administration, on a 5-to-4 vote, for refusing to address climate change by regulating automobile emissions under an act of Congress, the Clean Air Act. In his opinion for the Court, Justice John Paul Stevens wrote that the Environmental Protection Agency “has offered no reasoned explanation for its refusal to decide whether greenhouse gases cause or contribute to climate change,” and that the failure to act “was therefore arbitrary, capricious … or otherwise not in accordance with law.”
The ruling, which recognized that litigants may on occasion force the government’s hand to take its regulatory authority seriously, was a watershed for environmental law. But much has changed since then. Among other benchmarks, the Paris climate accord, the election of Donald Trump, and a cataclysmic new report on what the near future holds for the environment have all altered the calculus on what can and must be done today to tackle the real threat of climate change. The Supreme Court’s own composition is also vastly different: Only two of the justices who prevailed in the Massachusetts v. EPA majority remain on the bench today.
None of this has deterred a group of 21 young people, ages 11 through 22, from putting their names on an unlikely federal lawsuit that, in an era of diminishing constitutional rights, is widely seen as a shot in the dark. Their claim is as extraordinary as the relief they seek: Their complaint, which they filed in federal court in Oregon in 2015, asserts that the federal government — up to and including the president of the United States — is violating their civil rights “to life, liberty, and property by substantially causing or contributing to a dangerous concentration of CO2 in the atmosphere.” And that by failing to take corrective steps, a litany of federal agencies and officials “dangerously interfere with a stable climate system required by our nation and Plaintiffs alike.”
To these youth and their lawyer, the only way to redress these constitutional injuries is to get the courts to order the government to take drastic measures under existing law and what the plaintiffs describe as the executive branch’s “public trust” obligations to protect the environment and these children’s future. Their ask: The creation and enforcement of a “national remedial plan to phase out fossil fuel emissions and draw down excess atmospheric CO2,” all with the goal “to stabilize the climate system and protect the vital resources on which Plaintiffs now and in the future will depend.”
Under an array of doctrines the Supreme Court has erected over time, this is the kind of sweeping constitutional challenge that would normally be thrown out of court in a heartbeat. But not this case. Against all odds, the children’s lawsuit has survived several layers of review and appeals. And at every turn, the federal government has resisted. Its options extinguished, the Department of Justice now has a pending request before the Supreme Court to bring the upcoming trial, scheduled to start next week, to a screeching halt.
Noel Francisco, Trump’s solicitor general and top lawyer before the Supreme Court, isn’t taking this case laying down. “Respondents’ position amounts to the astounding assertion that permitting or encouraging the combustion of fossil fuels violates the Due Process Clause of the Constitution and a single district court in a suit brought by a handful of plaintiffs may decree the end of the carbon-based features of the United States’ energy system, without regard to the statutory and regulatory framework Congress enacted to address such issues with broad public input,” he wrote in a forceful petition addressed to Chief Justice John Roberts, who last week put a temporary pause on the proceedings.
This was no ordinary appeal, mind you, but a rarely granted form of relief that is the virtual equivalent of suing a judge and ordering her to do something — in this case, to shut down the climate-change trial that she should’ve never allowed to get this far. The Trump administration’s argument is, at its core, one of separation of powers: Courts have no business decreeing environmental policy, which rests exclusively with Congress and the Executive branch. Subjecting a host of government officials to withstand a ten-week trial, in Francisco’s view, would amount to a “judicial usurpation of power.”
But lawyers for the youth and courts that have already ruled on their behalf don’t quite envision such a gloom-and-doom scenario should the trial proceed. In March, an appeals court told the Trump administration its objections to the suit were “premature,” even as it acknowledged that the children’s claims were “quite broad” and that “the legal theories … raise issues of first impression.” In a later July order, the same three-judge panel more or less told the government that it was doing it all wrong, and jumping the gun once again. “It remains the case that the issues that the government raises in its petition are better addressed through the ordinary course of litigation,” the court said.
That’s not to say a Supreme Court with a solid conservative majority won’t be receptive to the Trump administration’s pleas. In a cryptic, unsigned July order agreeing that protests about the the climate-change case were “premature” at this stage, the Supreme Court nonetheless telegraphed that the breadth of the children’s claims was “striking.” And as the Washington Post’s Robert Barnes observed this week, the justices have already entertained a number of extraordinary requests from the Department of Justice asking them to move quickly, leapfrog the appellate process, and get final rulings on things that would ordinarily take their sweet time in the courts. For all we know, a majority of the court may just pull the plug on it.
On Friday and of her own accord, U.S. District Judge Ann Aiken, who is handling the climate-change case in Oregon, seemed to heed the urgency of it all and put the trial on hold while the Supreme Court decides how to act. Of all the jurists who have spent time with Juliana v. United States, as the case is known, Aiken may be one of its biggest boosters. “Exercising my reasoned judgment,” she wrote in an opinion issued just two days after Trump’s election, “I have no doubt that the right to a climate system capable of sustaining human life is fundamental to a free and ordered society.”
Such a right has never been recognized under our Constitution, and may never be. But what if the right should exist, just as courts in generations past determined that certain rights unwritten in our Constitution, such as the right to privacy and to family integrity, should exist and be protected? That’s what’s visceral about what these youth want: their desire to at least be able to make their case and present documents, cross-examine officials, put forward experts and testimony establishing how the government has failed them. How those in power have violated the public trust by not preserving what belongs to them and future generations. Will the Supreme Court let them go that far?