In her argument, Olson said she knows of no other instance where people suffering personal injury at the hands of their government are told to go to the polls when a constitutional right is being violated
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The 21 young plaintiffs in Juliana v. United States will mark their six-year anniversary just days from now. They first petitioned the federal District Court for the District of Oregon on August 12, 2015. Over the past six years, the Juliana plaintiffs have grown in age, understanding, and stature. The lead plaintiff, Kelsey Juliana, is now 25 years old; Levi Draheim, the youngest, is 14. Individually and as a group, they’ve now had first-hand experience—perhaps to their chagrin—of the ways of Washington and the federal court system. For the past six years, the case has moved from the trial court to the Ninth Circuit Court of Appeals, onto the US Supreme Court, and back again to the trial court.

The latest effort of the plaintiffs’ attorneys is to get the case back on active status. The recent oral argument to amend their pleadings serves as the jumping-on point of this article. Stay with me a moment as I try to explain Juliana’s latest moves.

The question that keeps coming back to the court like a bad check is whether the plaintiffs have the right to stand before a judge to plead their case. Six years on, and the question of standing has yet to be definitively answered. ​

On March 9, 2021, attorneys for the youth plaintiffs filed a motion to amend their original complaint against the federal government and adjust the remedy sought. The proposed amendment was prompted by the latest 9th Circuit Court of Appeals ruling in the case. (For a complete timeline on the case, click here.)

The Appellate Court held the plaintiffs suffered actual injuries, and the government’s action contributed to those injuries. However, the Court also ruled that it lacked the authority to order the federal government to remediate the injuries.

To be granted standing, a petitioner must answer three questions in the affirmative:

  • Have they suffered a concrete harm?
  • Is the harm the direct result of a defendant’s action?
  • Does the court have the power to redress the harm in some substantive manner?

It’s the third question the courts keep coming back to and answering in the negative.

The proposed amendment downsizes what the Juliana youth first wanted the court to do. Originally, the plaintiffs were asking the court to: (1) to make a safe and sustainable environment a constitutionally protected right, and (2) order the federal government to cease its active role in Earth’s warming and prepare a plan subject to judicial approval to draw down harmful greenhouse gas (GHG) emissions.

Now what they’re asking is for the court to declare that the youth have standing to come into court to explore the question of protections and solutions. The “ask” is the declaratory judgment—something that would appear to be well within the ability of a court to grant.

Before Judge Aiken allows the amendment, she’ll have to decide whether the federal government has a constitutional responsibility to safeguard the plaintiffs from the consequences of burning fossil fuels. What the government should do about it isn’t really the issue at this point.

Should the declaratory judgment be made, redress would be up to the government to decide. The vagueness of this is its beauty. The court now isn’t ordering the government to cease and desist any support being provided to the fossil-fuel sector or to bring it a government-wide plan for it to validate.

The new strategy may appear to be a giant step backward. Looks can be deceiving, however. Consider an analogy having to do with a camel’s nose. Once he sticks it under the tent and is not repelled, it will not be long before you have a lap-camel on your hands. Once it is established that the plaintiffs—indeed all children—have a constitutional right to a habitable and sustainable environment, great things can happen.

It may be that before Judge Aiken issues her opinion on the declaratory judgment, the parties themselves find a way to settle the case between them. In May, Aiken asked the sides to seek some agreement on what the federal government might do to satisfy the youth plaintiffs. It, too, is another Hail Mary.

To mediate the settlement talks, Aiken convinced Magistrate Judge Thomas Coffin to come out of retirement. Coffin was involved in the case at its earliest stages and provided Aiken with his evaluation of the legal arguments.

Although skeptical, plaintiffs’ attorney Julia Olson was willing to bargain but only–

If there’s real movement and the federal government comes to the table with some substantive, meaningful proposals that aren’t just symbolic, we’re committed to negotiating.

Interestingly 18 red states, led by Alabama, have petitioned the court to intervene in the case. Also filing an amicus brief were the Attorneys General of New York, Delaware, Hawaii, Minnesota, Oregon, and Vermont, and the environmental group NRDC. No decision has yet been made.

Three administrations—Obama, Trump, and Biden—have now opposed the youths’ petition. Opposition to giving the Juliana plaintiffs their day in court may be the only climate-related issue they actually agree on.

The three administrations argue that the matter of redress is a political issue and, therefore, a federal court lacks the constitutional authority to order the other two branches of government to act as the plaintiffs have suggested. It’s understandable why climate activists might be irritated by Biden’s position on this question, given the priority he places on climate matters.

There’s never been a president with Biden’s commitment to climate action. His climate agenda is replete with many of the policies and programs the Juliana youth would like to see put in place.

No president—whether Biden or Trump—is willing to allow the courts to whittle away its executive powers. It means the settlement discussions are unlikely to bear much fruit.

I’ve written about Juliana almost from day one. Over the six years, I have ended articles with the admonition that win lose or draw, the answer the Juliana youth are looking for must ultimately come from Congress and the president. I make no exception here.

Would a judicial decision declaring a habitable and safe environment a protected constitutional right help solve the problem? Absolutely! Would such a judicial decision solve the problem? Absolutely not. All roads lead back to Congress and the executive branch–always.

I support the desire of the Juliana youth to have their day in court. I submit, however, that they already have. In the six years since first being filed, the case has inspired countless others to file legal cases of their own and take their demands to act to the halls of legislatures both in the US and around the world.

Climate science is being talked and written about far more widely. Even conservative Republicans are beginning to accept climate change as real and propose solutions, e.g., tree planting and carbon sequestration.

Juliana has often been compared to such landmark decisions as the Brown v. Board of Education and Obergefell v. Hodges, as it too could expand the definition of a constitutionally protected right. The odds of that remain long—but then who would have thought that six years on the Juliana youth would still be arguing their case before the trial court judge?

 

Photo by Roxanne Desgagnés on Unsplash