Another Delay in Children’s Climate Lawsuit, Days After U.S. Supreme Court Allowed It to Proceed

The Trump administration has been trying to get the case thrown out, and the high court's order didn’t ensure a clear road ahead. Now, the trial is on hold again.

Some of the young plaintiffs in the children's climate lawsuit wait to enter a court hearing in the case. Credit: Robin Loznak

The young plaintiffs in the children's climate lawsuit sued the federal government, saying its actions had contributed to climate change, and that that violated the children's constitutional rights. Credit: Robin Loznak

Updated with the Ninth Circuit Court of Appeals issuing a temporary stay.

Two weeks after it put the case on hold, the U.S. Supreme Court allowed a lawsuit brought by 21 children and young adults against the federal government over climate change to proceed. But the Trump administration's attempts to derail the lawsuit weren't over, and now the trial is on hold again.

In their order on Nov. 2, the Supreme Court justices had suggested that the government's arguments ought to be considered by the Ninth Circuit Court of Appeals before being reviewed by the nation's highest court. 

The Trump administration filed a new request with the appeals court a few days later, and that court agreed on Nov. 8 to place a temporary stay on the trial while it considers the government's latest attempt to have the case thrown out. The trial had been scheduled to start Oct. 29 in U.S. District Court in Oregon.

The children's attorneys said their preparations for the trial would continue. The district judge, they said, had indicated she would set a new trial date once the stay is lifted. 

"Given the urgency of climate change, we hope the Ninth Circuit will recognize the importance to these young Americans of having a prompt trial date," said attorney Philip Gregory, co-council for the children along with Julia Olson, executive director of the nonprofit Our Children's Trust. The appeals court gave the attorneys 15 days to file a response to the government's latest petition, and the government will have five days to respond after that.

"We will continue to move the case forward by completing discovery and responding to the various petitions filed by the Trump administration," Gregory said. "We want to commence presenting the climate science in court as soon as possible."

The lawsuit, Juliana v. United States, was filed in 2015, accusing the government of violating the young plaintiffs' constitutional rights by failing to address climate change and continuing to subsidize fossil fuels.

If the youth succeed at trial, the case could result in a court order requiring the federal government to develop and implement a plan to cut U.S. greenhouse gas emissions. Even if they don't win, they would have brought the evidence of climate change and its risks to a public forum. Several high-profile climate scientists and a Nobel laureate economist plan to testify on the children's behalf.

The government's lawyers haven't contested the children's central claims—that climate change is real and is causing them harm. Instead, the lawyers have argued that the federal government is not responsible and that the court has no place ordering political branches—the Congress and the executive branch, including environmental agencies—what to do. The Justice Department also argued that a long trial would cause the government "irreparable harm."

The federal government has made several attempts to have the case thrown out, seeking an extraordinary, preemptive "writ of mandamus" from the appeals court that would have prevented a trial, the same type of petition the government submitted again this week. The Ninth Circuit Court of Appeals has rejected it twice. But the Supreme Court noted that the appeals court denied the earlier requests largely because they came so early in the case. That's no longer pertinent, the justices wrote.

The Supreme Court justices also left open the possibility that the government could appeal to the high court again if doesn't get what it wants from the court of appeals. Both Justice Clarence Thomas and Justice Neil Gorsuch, who was appointed last year by President Donald Trump, would have granted the government's request, the order stated.

"These defendants are treating this case, our democracy, and the security of mine and future generations like it's a game," Kelsey Juliana, a 22-year-old plaintiff in the case, said after the Supreme Court lifted its stay. "I'm tired of playing this game. These petitions for stay and dismissal are exhausting. To everyone who has invested in this case, to those who've followed along our journey for the past three years and counting: stay with us, in hope and in the pursuit of justice."

In addition to the federal lawsuit, Our Children's Trust has been supporting similar lawsuits in nine states. On Oct. 30, a Superior Court judge in Alaska granted that state's motion to dismiss the children's case against it, saying the youth had not identified specific state policies that directly contributed to climate change. "A court order granting Plaintiffs' injunctive relief claims would in essence create a policy where none now exists," Judge Gregory Miller wrote. In a press release, Our Children's Trust suggested it would appeal. A similar case in Washington state was dismissed in August.

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