Groundbreaking environmental suit moves forward

On June 9, 2017, a federal district court in Oregon denied the Trump administration’s motion for appeal in a climate change lawsuit, issuing a legal ruling which seems to pave the way for a groundbreaking case that pits children and young adults against the federal government to go to trial.  “Exercising my ‘reasoned judgment,’ I have no doubt that the right to a climate system capable of sustaining human life is fundamental to a free and ordered society,” the trial judge wrote.

The Trump administration, which is, let’s face it, firmly in the pocket of the oil and coal industries, immediately took the unusual step of filing an appeal the very next day, asking the Ninth Circuit Court of Appeals to review Judge Ann Aiken’s decision to allow the case to move forward.

The appeal petition is what is known as a writ of mandamus (literally, “we command”). It is an extraordinary legal mechanism which asks a higher court to order a subordinate court, corporation, or public authority to do (or forbear from doing) some specific act which the body is obliged under law to do or refrain from doing.   Typically, in order for a writ of mandamus to succeed, there must be a judicially enforceable and legally protected right before the person claiming to be “aggrieved” can ask for a mandamus.  In order to be “aggrieved”, one must be denied a legal right by someone who has a legal duty to do something and abstains from doing it.  In this context, the Trump administration would have to show that the lower court’s ruling violates the government’s vested rights.  As couched in the court filing by the Trump administration, the Ninth Circuit is being asked to exercise its powers to “end this clearly improper attempt to have the judiciary decide important questions of energy and environmental policy to the exclusion of the elected branches of government.”

The move is unusual. The nonprofit group behind the lawsuit, Our Children’s Trust, as well as other legal experts (including myself) describe the Trump administration’s petition as “drastic” and “extraordinary.”  Indeed, such writs are rarely granted, particularly under these circumstances.  The case is still before a district (trial) court.  It is very rare for appellate courts to get involved before trial court proceedings are completed.  Usually, there must be a final order in the lower court before an appeal is possible.  Appeals taken before the trial court proceedings are finished are called “interlocutory” appeals, and usually there has to be a compelling reason to grant the appeal, such that there would be a manifest and gross injustice if proceedings were to go on in the trial court before the alleged error is corrected.

Thus, the decision on whether or not to review the District Court’s decision to allow the case to move forward is within the discretion of the Ninth Circuit Court of Appeals. This is the same court which upheld the stay of Trump’s Muslim ban.  It is, for the federal judiciary anyway, a left-leaning court, and unlikely to grant the appeal unless the administration has articulated a truly compelling reason to do so.

What is striking about the case, Juliana, et al. v. United States, is its groundbreaking  ambition. It is premised on the doctrine of “public trust”, which holds that the U.S. government must preserve certain commonly-held elements, and attempts to apply that doctrine to the atmosphere  —  asserting that the government is failing to hold the atmosphere in good health for future generations.  Given Trump’s decision to withdraw from the Paris Climate Agreement, it is arguable that the case, which originally named the Obama Administration as a defendant, and later added the Trump Administration, is stronger on its merits now than it was when filed in August of 2015.  Attorneys for the plaintiffs will also assert that the government’s climate policies, like fossil fuel subsidies (amounting to over 15 billion dollars a year, more than 5 times the government’s “unfair” commitment to the Paris Agreement)  violated the plaintiffs’ constitutional rights to a livable climate.  Basically, the case is a young generation suing its predecessors for environmental betrayal that threatens their lives and health and the economy of the future.

The Trump Administration is taking the position that the case really addresses a political question best left to the legislative and executive branches of government. To be sure, that can be a compelling argument.  When a court determines that the issue involves a purely political question, it will usually dismiss a case as “non-justiciable”, meaning that it isn’t properly a matter for the judiciary.   The Trump Administration already used this argument in its last appeal in the case.  Didn’t work.  That’s why it filed the writ of mandamus.

The plaintiffs’ attorneys are clearly enterprising and intelligent in getting the case this far. And to their credit, there is precedent for courts intervening in matters of environmental regulation which at first blush might seem political in nature.  They have clearly laid out their case well to advance it as far as it has come.

“The U.S. government is trying to use every possible tool they can to avoid trial,” Julia Olson​, co-lead counsel for plaintiffs, said in a press statement. “Because they know applying the law to the facts and science in this case will mean certain defeat for them at trial. If the Trump administration was at all confident it could defend itself at trial, it would be preparing for trial.”

The U.S. District Court of Oregon, meanwhile, is still deciding whether or not to allow three fossil fuel groups, which had intervened as defendants in the case, to withdraw from the lawsuit. The American Petroleum Institute (API), the National Association of Manufacturers (NAM), and the American Fuel & Petrochemical Manufacturers (AFPM) — all major trade groups representing fossil fuel and manufacturing interests — filed motions to withdraw from the case just before a court-imposed deadline would have forced them to state their positions on climate science. That itself was something of a master stroke, because the very notion of acknowledging the science that the petroleum industry has been trying to rebut for years – or denying that science in a case that placed the issue front and center – could have engendered a whole other set of liabilities for the industry.

The petroleum and coal industries will just have to wait for the Trump Administration to fight their battles for them. Luckily, they already have the EPA Administrator, Scott Pruitt, and a rogues’ gallery from the polluter’s lobby that now runs the government in their pockets.

The environmental future of this country may very well fall on twelve ordinary citizens, against a massive corporatocracy which has bought and paid for the government of its choosing. How fitting that would be.

You can read the judge’s awesome opinion at this link:

https://static1.squarespace.com/static/571d109b04426270152febe0/t/5824e85e6a49638292ddd1c9/1478813795912/Order+MTD.Aiken.pdf