By Karen Savage
The Trump administration said a group of 21 young people has no right to sue the federal government for endangering their future by exacerbating climate change, according to a Justice Department brief filed to the Ninth Circuit Court of Appeals.
The brief was the first to be filed in a rare interlocutory appeal in the constitutional climate lawsuit, Juliana v. United States. In it, the federal government maintains the young plaintiffs in the case, have “no fundamental constitutional right to a ‘stable climate system.’”
The government further contends that because “global climate change affects everyone in the world,” the plaintiffs’ are not suffering from a legally actionable injury, but from “generalized grievances.”
“Plaintiff’s asserted injuries arise from a diffuse, global phenomenon that affects every other person in their communities, in the United States and throughout the world,” the administration wrote in the brief submitted on Friday. “The federal government’s decisions to ‘allow fossil fuel production, consumption and combustion at [allegedly] dangerous levels’ did not increase the danger to plaintiffs in particular.”
The argument is the latest in the administration’s continued effort to have the lawsuit, initially filed in 2015, thrown out. Its latest appeal won it a highly unusual hearing in front of the Ninth Circuit, which is reviewing the case although it has not yet gone to trial in District Court.
The lawsuit charges that the federal government is violating the plaintiffs’ Constitutional rights to life, liberty and property by promoting an energy system that exacerbates climate change. They also say the government is failing to protect essential public trust resources and are asking for a science-based program to reduce carbon emissions and protect the climate for future generations.
The lawsuit was ordered to trial in December 2016 by U.S. District Court Judge Ann Aiken. The interlocutory appeal, which was granted by a three-judge panel in December, is rare. It allows a higher court to review certain aspects of a case before trial.
The latest brief presented no new arguments by the government, said Michael Gerrard, a professor of environmental and climate change law at Columbia University and chair of the faculty at Columbia’s Earth Institute.
“The DOJ (Department of Justice) has been raising the same arguments multiple times with the District Court, Ninth Circuit and Supreme Court,” Gerrard said, adding that the interlocutory appeal will largely include a rehashing of previous arguments.
Under an expedited briefing schedule ordered by the court last month, the plaintiffs’ response brief is due Feb. 22, with an optional reply brief from the government due March 8.
The federal government said in its latest brief that even if the plaintiffs have been legally harmed, it is not responsible.
“They cannot demonstrate causation because climate change stems from a complex world-spanning web of actions across all fields of human endeavor,” the federal government said in its brief. “Plaintiffs cannot plausibly connect their narrow asserted injuries—like flooding or drought in their neighborhoods—to any particular conduct by the government.”
The young plaintiffs, however, have argued that the particulars of climate science, and the role of the U.S. government in exacerbating climate change, should be argued in court, not in a premature appeal before a trial has been conducted. They plan to call expert climate science witnesses, as well as those who have researched how much of global warming can be attributed to particular countries and industries.
Much of the evidence submitted by the young plaintifss to prove that they are being harmed by climate change comes from the government itself, with extensive research into climate impacts coming from federal agencies (NASA and NOAA, in particular) as well as the release last year of the Fourth National Climate Assessment.
The Trump administration has said that climate change is causing “polar ice melt, earlier annual snow melt, reduced snowpack, sea-level rise, sea temperature increases, threats to coastal cities, adverse impacts to coral reefs and the life they support, more powerful storms and hurricanes, wildfires, drought, floods, and a variety of other impacts.”
In the brief, however, the federal government reiterates its claim that the suit falls under the Administrative Procedures Act (APA), which outlines procedures for judicial review when plaintiffs make claims against a federal agency, and said that the “plaintiffs have refused to comply with the requirements of the APA.”
That premise was rejected in October by Aiken, who said that the APA does not address the plaintiffs’ claims because they seek review of “aggregate action by multiple agencies, something the APA’s judicial review provisions do not address.”
Gerrard said this type of appeal normally takes a year or more to be resolved, but in this instance, the court could reach a decision as early as this summer.
“The expedited briefing schedule signals that the Ninth Circuit wants to decide fairly quickly,” Gerrard said.