By pausing a landmark lawsuit filed by children who want to force the federal government to take action against climate change this past weekend, Supreme Court Chief Justice John Roberts signaled that it’s a long shot to succeed.
Roberts’ decision is a sign that the high court doesn’t want the judiciary used for “show trials,” said Jeff Holmstead, a former deputy administrator of the Environmental Protection Agency in the George W. Bush administration who is now an energy industry attorney at Bracewell.
“Climate change is a serious issue, but this case has no legal merit,” Holmstead said.
The suit, Juliana v. United States, involves 21 children who allege that inaction from government policymakers has worsened climate change, robbing future generations of their constitutional right to a healthy environment. Our Children’s Trust, representing the group of kids, is not seeking monetary damages for past inaction. Rather, it aims to compel the federal government to take future policy action to reduce greenhouse gas emissions that cause climate change.
The case was scheduled to be heard beginning on Oct. 29 in a U.S. District Court in Oregon, but the administration filed an emergency petition asking the Supreme Court to intervene. Roberts’ order late Friday provided at least a temporary victory to the Trump administration, which has tried repeatedly — and unsuccessfully — to have the courts dismiss the suit filed in 2015.
Roberts’ action required Our Children’s Trust to provide a more thorough response supporting their case. The group filed response comments Monday morning with the Supreme Court, arguing that delaying the trial would “disrupt the integrity” of the judicial system and “irreparably harm these children.” Roberts, who could refer the matter to the full Supreme Court, has not acted yet on the new information, and it’s unclear if the district court trial will go on as scheduled.
The plaintiffs are using two main theories in their legal case.
They argue that the warming atmosphere should get special treatment under the public trust doctrine, which says the government holds essential natural resources (such as land, water, or wildlife) in trust for its citizens and it must protect them.
They also claim the federal government has violated a constitutional right to a livable climate by not taking action to reduce greenhouse gas emissions to a safe level.
Nathan Richardson, an environmental law professor at the University of South Carolina School of Law, says that claims are not “crazy” or “frivolous.” He credits the challengers for making creative legal arguments under the public trust doctrine, by claiming ocean acidification caused by climate change is an example of the government failing to prevent harm inflicted on water as a natural resource.
But he said the action sought by the plaintiffs — some major action to curb climate change — would be hard to define and enforce, and thus is a “long shot.”
“Assume the plaintiffs win. They want the courts to force an equal branch of government to do something to limit U.S. emissions, to take some action,” Richardson told the Washington Examiner. “That’s really not how the U.S. political system works.”
“I can’t imagine this Supreme Court, or even the 9th Circuit Court of Appeals, would say that the courts are now in charge of ordering the federal government to set up climate policy,” Richardson added.
The problem is that the kids’ case is too open-ended. “This amorphous claim the federal government has to do something is just the kind of legal obligation the courts have never enforced,” Holmstead said.
Columbia University environmental law professor Michael Gerrard, however, said he could envision the courts using the U.S. commitment to the Paris climate change agreement as a mechanism to measure appropriate federal government action.
Under the Paris deal, the U.S. set an unbinding target to lower the nation’s greenhouse-gas emissions 26 to 28 percent below 2005 levels by 2025.
“If the court were to agree there is a constitutional duty on the government to protect future generations [from] climate change, the court could say the federal government has to come up with a plan to reduce its greenhouse gas emissions to a level consistent to meeting the Paris goal.”
As proof of global precedent for requiring the government to protect future generations by enforcing the agreement, Gerrard noted an appeals court in the Netherlands this month upheld a lower court ruling forcing the Dutch government to reduce the country’s carbon emissions faster than planned.
No matter if the kids’ climate change case goes to trial, or succeeds there, Richardson says the plaintiffs may have already succeeded in gaining publicity. Our Children’s Trust has organized nationwide protests scheduled to coincide with the planned trial on Monday.
“You can view the whole case as being about a political motive,” Richardson said. “It keeps climate change in the headlines.”
