Once more unto the breach, the attorneys representing the youthful plaintiffs in Juliana v US were back before a judge defending their clients’ right to have their day in court. The case was first filed in the U.S. District Court of Oregon in August 2015. Since that time, the plaintiffs have faced what seems like a perpetual series of motions by US Department of Justice attorneys asking that the case be thrown out either on procedural grounds or for lack of legal sufficiency.

The July 18th hearing was on the government’s Motions for a Summary Judgement (MSJ) and A Judgement on the Pleadings (MJP). With one exception—dismissal of President Trump from the lawsuit—the government attorneys appeared to be rearguing issues rejected in March by a 3-judge panel of the Ninth Circuit Court of Appeals.

This most recent hearing was before Federal District Court Judge Ann Aiken. It marked the first time since September 2016 that Judge Aiken heard arguments in open court. Aiken is the trial judge in the case that is set to begin on October 29, 2018.

It is easy enough to appreciate the Administration’s desperately trying to avoid allowing the climate science to be presented at trial. The plaintiffs’ victory in the case would establish a constitutional right to a habitable environment and place upon the federal government the responsibility of holding in trust the nation’s natural resources.  Juliana will be to the environment what Brown v Board was to public education.

Should the plaintiffs prevail, federal support for fossil fuels in its many forms, e.g., tax incentives and access to federal onshore or offshore properties for exploration and extraction, would need to be phased out and replaced by a clean power plan on steroids. No longer a matter of party loyalties an established constitutional right to a sustainable environment would be to partisan politics what Alexander’s blade was to Gordius’ obdurate knot. 

Administration attorneys continue to base their dismissal motions on the same several arguments:

  • Plaintiffs lack standing to sue under Article III of the US Constitution. (To be granted standing a plaintiff must have suffered a concrete harm directly the result of a defendant’s action or inaction for which the court has the power to redress in some substantive manner.)
  • The law of Article III standing is built on the principle of a separation-of-powers and is intended to prevent the judiciary from usurping the powers of the political branches, i.e., executive and legislative.
  • The plaintiffs’ complaints should be dealt with as agency actions, i.e., the US Environmental Protection Agency (EPA), under the Administrative Procedures Act (APA) and not by a court of law.
  • The injuries alleged by Plaintiffs are not unique to them, neither can they be traced to the government’s systemic affirmative actions and/or distinct failures to use delegated authority.

Judge Aiken has promised prompt action on both the government’s motions.

Handicapping judicial proceedings is difficult. However, it should be noted that Judge Aiken has shown a disposition to let the plaintiffs have their day in court. In an earlier order, she expressed no doubt that the right to a climate system capable of sustaining human life is fundamental to a free and ordered society. During Wednesday’s hearing, Judge Aiken appeared to reaffirm her opinion that survival is arguably a right guaranteed by the Constitution. A right at least worthy to be argued in open court.

Judge Aiken is not alone in this sentiment. An earlier effort by the Trump Administration to stay plaintiffs’ discovery efforts was rebuffed by United States Magistrate Judge Coffin. The requested stay was based on the government’s continued contention that the case was an administrative matter for EPA to decide. Had it been granted, the stay would have blocked plaintiffs’ efforts to obtain needed information from federal agencies, e.g., environmental impact statements and scientific studies on the causes and consequences of greenhouse gas emissions used in drafting regulations supportive of fossil fuels.

In denying the stay, Judge Coffin quoted the District Court’s earlier rejection of a previous motion to dismiss:

​ Plaintiffs could have brought a lawsuit predicated on technical regulatory violations, but they chose a different path. As masters of their complaint, they have elected to assert constitutional rather than statutory claims. Every day, federal courts apply the legal standards governing due process claims to new sets of facts. The facts in this case, though novel, are amenable to those well-established standards.

The government also sought approval of its motion to dismiss Trump as a named defendant based on the plaintiffs having access to the other defendants in the case, e.g., federal agency executives. Plaintiffs’ attorneys were willing to stipulate to a dismissal without prejudice.

A dismissal without prejudice preserves the plaintiffs’ right to add Trump at a later date should his involvement become necessary. According to a press release by Our Children’s Trust, the defendant’s counsel told Judge Aiken the White House had instructed them only to accept a dismissal with prejudice placing The Donald beyond the plaintiffs’ reach

The Administration filed motions earlier in July with the U.S. Court of Appeals for the Ninth Circuit. Although the motion for an emergency stay was denied, the Appeals Court has yet to rule on the government’s second request for a writ of mandamus. The first request was denied in March by this same court.

The day before the Judge Aiken hearing, the Trump administration filed a motion with the United States Supreme Court asking to stay both discovery and the trial. Justice Kennedy has been assigned the case and has asked the Juliana plaintiffs to respond to the motions by July 22, 2018. It is not clear at this point when Kennedy will make his decision.

The Juliana motion will be one of Justice Kennedy’s last official cases before his announced retirement takes effect at the end of the month. It is an action that places the nomination of Judge Brett Kavanaugh front-and-center in the eyes of the environmental community.

It has been known from the moment Juliana was filed that it would find its way to the US Supreme Court for final disposition. Juliana, like many other pending climate-law cases, is based upon decisions in which Kennedy’s was the deciding vote in favor of environmental protection. Not the least of these was the 5-4 decision in Massachusetts v EPA the case that led to the Obama Clean Power Plan.

After July and depending upon when Kavanaugh is confirmed—as he is likely to be—climate-law cases will face a very different Supreme Court. Judge Kavanaugh has a much more conservative take on the federal government’s authority to regulate greenhouse gas emissions than Justice Kennedy. Had Kavanaugh been on the bench in 2007 he would have surely cast his lot with Justice Scalia. A finding for EPA would have limited the Agency’s authorities to regulate greenhouse gas emissions, and the endangerment finding upon which the Clean Power Plan (CPP) and other Obama era protections were based might never have been made.

Kavanaugh, like Gorsuch, is considered a textualist or originalist putting him closer to Justice Scalia than Justice Kennedy in his judicial philosophy. Justice Scalia described his originalist position as follows:

The Constitution that I interpret and apply is not living but dead, or as I prefer to call it, enduring. It means today not what current society, much less the court, thinks it ought to mean, but what it meant when it was adopted. (emphasis added)

Kavanaugh’s view of federal environmental regulation is reflected in his opinion in MexichemFluor v EPA striking down EPA’s regulation of hydrofluorocarbons (HFCs). In his opinion the Clean Air Act did not give the Agency the authority needed to regulate HFCs:

The Supreme Court cases that have dealt with EPA’s efforts to address climate change have taught us two lessons that are worth repeating here. FirstEPA’s well intentioned policy objectives with respect to climate change do not on their own authorize the agency to regulate. The agency must have statutory authority for the regulations it wants to issue. 

SecondCongress’s failure to enact general climate change legislation does not authorize EPA to act. Under the Constitution, congressional inaction does not license an agency to take matters into its own hands, even to solve a pressing policy issue such as climate change. (emphasis added)

Given Kavanaugh’s judicial philosophy it would be fair to assume his reticence to see a habitable environment as an inalienable right of the Juliana plaintiffs—or anyone else. Much will depend ultimately upon Kavanaugh’s willingness to follow previous judicial decisions; decisions which many believe have established federal regulatory authority over greenhouse gases as settled law.

As noted by one of the plaintiffs’ counsels it is extremely rare to have simultaneous motions pending before three different federal courts. Federal defense attorneys have now filed motions in the District Court, the Ninth Circuit Court, and the Supreme Court. Their simultaneous assault bespeaks a degree of panic and desperation. One wonders why?

Allowed to go to a public trial, Juliana will mark the first-time climate-science will be litigated in a court of law. In today’s hyper-partisan atmosphere, the courts are the only venues in which climate change can be objectively debated, and politics ruled out of order. The case could easily take on a sensationalism last seen in another case of science in the courts–The State of Tennessee v John Thomas Scopes.

Even before the High Court makes a final decision, Juliana will have successfully moved the climate debate forward by having gotten the Administration to admit on the record the truth of the scientific findings that the plaintiffs will introduce into evidence—leaving only its unwillingness to be held accountable to be decided on by the court and reported by the media.

Truth is the enemy of  Trump and company. Is it any wonder then that Administration appears desperate to deny the Juliana plaintiffs their day in court?

Look for an update of the case after Justice Kennedy rules on the Administration’s motions to stay discovery and the trial.

Image credit: Alexander Cutting the Gordian Knot, by Jean-Simon Berthélemy, Public Domain, https://commons.wikimedia.org/w/index.php?curid=49570