The fate of a lawsuit alleging that the U.S. government is putting an entire generation of young people in danger by enabling the fossil fuel industry now rests in the hands of three judges in Oregon.
On Tuesday afternoon, Julia Olson, the lead attorney in a lawsuit representing 21 millennials and teens, argued that federal support for activities like oil and gas production on public lands, offshore drilling exploration, and pipeline expansion amounts to "government-sanctioned climate destruction." Assistant Attorney General Jeffrey Clark, representing the Trump administration, countered that the lawsuit is "a direct assault on the constitutional design."
It’s now up to a panel of Ninth U.S. Circuit Court of Appeals judges to decide whether the case can go to trial, a decision that could come days from now or take months. If they rule in favor of the plaintiffs, it will set in motion a chain of historic legal events that could ultimately force a climate-denying president to adopt an aggressive plan for limiting greenhouse gases. If they side with the Trump administration, it could block future attempts by individuals to sue the federal government for the death, chaos, and misery caused by climate change. Even informed observers don’t know which path they’ll pick.
"In terms of what I think the judges are going to do, I’m not entirely sure," said Melissa Powers, a professor at Lewis and Clark Law School in Portland, Oregon, who studies environmental issues and has been following the lawsuit. "It’s really hard to tell."
This is the latest test for a long-shot case that’s survived one challenge after another since being filed by the group Our Children’s Trust in 2015. At its heart is the novel legal claim that wildfires, hurricanes, floods, and other disasters caused by climate change prevent young people across the U.S. from enjoying their "rights to life, liberty, property, and public trust resources."
The 21 young plaintiffs and their lead attorney seemed to have encouraging odds heading into Tuesday’s hearing. The three judges—Mary Murguia, Andrew Hurwitz, and Josephine Staton—are Barack Obama appointees who are somewhat familiar with climate issues.
"My sense is that this is about as favorable a panel as [the] plaintiffs could have asked for," said Ann Carlson, a professor of environmental law at UCLA. "If they can’t persuade this panel, that would tell you something more generally about what an uphill battle this is." The lawsuit, she explained, is asking the U.S. court system to "find what is essentially a new constitutional right"—the right to a government that doesn’t knowingly hasten a disaster of unimaginable proportions.
The judges made sure to remind Olson of the magnitude of her claim. At one point during the hearing, Olson argued that "this court does need to say there’s a constitutional right at stake but, your honor, it doesn’t need to find it, because it’s in the Constitution and the Fifth Amendment that the plaintiffs have fundamental rights to life and liberties."
Judge Hurwitz shot back: "Actually, to be fair, look, you’re arguing for us to break new ground." He continued, "You may be right, I’m sympathetic to the problems you point out, but you shouldn’t say this is just an ordinary suit and all we have to do is follow A, B, and C to get there. You’re asking us to do a lot of new stuff, aren’t you?"
Olson argued in her closing statement that progress on crucial moral issues came because courts were willing to re-examine how the law is interpreted and applied.
"If we look back on the 20th century, we can see that race and sex discrimination were the constitutional questions of that era, and when our great-grandchildren look back on the 21st century, they will see that government-sanctioned climate destruction was the constitutional issue of this century," she said.
The judges also pushed back on points made by the government’s attorney, Clark, who attempted to portray the lawsuit as a slippery legal slope that could lead the way towards questionable future court challenges.
"Think about the implications of it, you can take the right that they’re trying to seek now, you can fashion a whole bunch of new rights," Clark said. "You can fashion a right to say that, 'Look we have concerns in America about lots of people dying from heart disease, one contributing factor in that is that the federal government isn’t encouraging exercise enough.'"
"Courts deal in shades of gray all the time," Judge Staton countered. "Why is it that a court can’t make a determination that obesity is different from something like a life-sustaining climate?"
The panel’s decision-making process could stretch into the summer. "You never know exactly what pace they’re going to move at," Powers said. And an actual trial on the merits of the suit is longer away still, since either side could appeal to the Supreme Court. Given that conservative justices such as Brett Kavanaugh have a history of ruling against environmental regulations, the plaintiffs may have a tough battle ahead even if the panel rules in their favor. If the case is eventually thrown out completely, that would likely mark the end for the unique legal argument put forward by Our Children’s Trust against the U.S. government, though it might not have much effect on separate lawsuits brought against fossil fuel companies.
If the climate lawsuit does end up going to trial, it could become a historical marker in the battle against climate change, a public forum for assigning blame about who should be ultimately responsible.
There would be "submissions of evidence, taking of testimony and cross-examination—all the stuff that we see in movies," Powers said, as plaintiffs attempted to prove that the federal government knowingly boosted a fossil fuel industry while pollution destabilized the climate. "They would produce and generate a great deal of very interesting information," she said.
If the 21 young plaintiffs do prevail, it could result in the courts ordering the government to come up with a climate plan in line with what the United Nations calculates is needed to avoid catastrophe—a 45 percent reduction in emissions by 2030.
"I think the way the plaintiffs would frame it is, 'Right now we are heading toward a trainwreck, and what we’re trying to do is get the courts to help avert that trainwreck,'" said Alice Kaswan, a professor at the University of San Francisco school of law. "The courts are not necessarily going to drive the train. But they’re going to tell the government to get in the driver’s seat, stop letting this train go without a driver, get in the seat and do something."
Geoff Dembicki is the author of Are We Screwed? How a New Generation Is Fighting to Survive Climate Change. Follow him on Twitter.