The plaintiffs who were just children and teenagers in 2015 when they sued the U.S. government for actively aiding the toxic fossil fuel industry are now taking their case to the Supreme Court.
Plaintiffs in the landmark case of Juliana vs. United States hope this year -- with the Biden-Harris administration taking the climate crisis more seriously than any other before -- may the time when the children's group who launched the case can sit down for a settlement with their government counterparts. Photo: Image by Kevin Snyman from Pixabay
Yesterday the U.S. Ninth Circuit Court of Appeals again rejected one of the most original and thoughtful cases ever filed in the age of the climate crisis.
The group who filed the case reacted not with frustration or anger, but instead with determination.
They are now appealing to the U.S. Supreme Court for real justice.
Most lawsuits filed in the climate crisis, in the United States at least, have been either class action suits by individuals, by environmental groups, or by cities and state governments, all filed against one or more members of the fossil fuel industry. This one, known as Juliana vs. United States, was filed as a class action suit where the plaintiffs who were mostly minors when the case was originally filed in 2015, and where the defendant is the U.S. federal government.
The basis for the suit is the undeniable reality that, through active encouragement of oil and gas exploration throughout the country, on federal lands, and in nearby ocean waters, and via providing billions of dollars in subsidies to the fossil fuel industry, the federal government has taken an active role in encouraging the growth of toxic fossil fuel emissions. In doing so, the government has contributed in a major way to the rapidly increasing carbon dioxide and methane emissions in the atmosphere. Those greenhouse gas emissions have trapped the sun’s energy close to the planet now for many decades, pushing the climate crisis now to the point of no return.
The lawsuit connected those dots in a way never before used as a legal argument proving the government itself is liable for the climate crisis. The key difference between cases which may have seemed similar is this case argues not that the government did not do enough to stop the climate crisis, but instead that the government actively made it worse by providing corporate subsidies and access to federal lands and ocean water areas to continue to drill, among other actions.
By doing so, the lawsuit says the government has violated plaintiff’s rights to life, liberty, property, public trust, and equal protection under the U.S. Constitution.
The case had been hard fought first by the Obama administration, a group the litigants thought might have been more favorable to the case, and then by the Trump team, who had made no secret of their strong support of the polluting by powerful members of the fossil fuel industry. There were multiple switchbacks in the case, where sometimes lower courts sided in favor of the plaintiffs and sometimes the issue was thrown back for further review.
In late 2019, the case had finally made it to the three-judge Ninth Circuit Court of Appeals for resolution. That court ultimately ruled against the children’s group in January 2020, by a vote of 2-1.
In that ruling, the judges did in fact agree with the seriousness of the issue that global heating has brought the world to what they called “the eve of destruction”. They further concurred that “the government contribution to climate change is not simply a result of inaction”. Despite those positives, however, the court ultimately “reluctantly concluded that the plaintiffs’ case must be made to political branches or to the electorate at large”.
The “one” in the dissent to that ruling, Judge Josephine Stator, wrote in her response to the ruling that “the government accepts as a fact that the United States has reached a tipping point crying out for a concerted response – yet presses ahead toward calamity”.
“"It is as if an asteroid were barreling toward Earth and the government decided to shut down our only defenses," Judge Stator said further. "Seeking to quash this suit, the government bluntly insists that it has the absolute and unreviewable power to destroy the nation."
The plaintiffs responded to that decision by appealing it directly back to the same court. They argued there were legal errors in the panel decision and petitioned the court for a new hearing.
On February 10, 2021, the court simply wrote that one of the judges on the court had asked for a vote to consider the rehearing, and that “the matter failed to receive a majority of the votes”.
After that decision was announced, the plaintiffs met with Julia Olson, executive director and chief legal counsel for Our Children’s Trust, the nonprofit public interest firm who represents them. They agreed to take the case one more step, to the U.S. Supreme Court, in one last attempt to plead their position.
From a legal standpoint, Olson made it clear she felt the Ninth Circuit panel had not properly addressed the case.
"The Ninth Circuit failed to correct the legal errors in the panel decision,” she said in a statement issued yesterday. “A central component of our democracy since Marbury v. Madison is the ability of our courts to declare what the law is, and resolve the real controversies brought to them by the people. The Ninth Circuit has deprived people in that Circuit the ability to seek a resolution of a real controversy with their government, and hear a controversy about harm to the health and safety of children. It goes against Supreme Court precedent and the precedent of every other Circuit. That travesty cannot stand."
The plaintiff group is hoping the new Biden-Harris administration, which now is placing the climate crisis as one of the most important issues of its administration, may choose to direct government attorneys in a different manner on this case.
Plaintiff Sarah V. spoke for all in a statement she issued yesterday regarding their plea.
“I hope and need the Biden administration to hear what the youth are saying,” she said, “and to recognize how we are disproportionately affected by climate change and we will face the consequences of this administration’s actions and all the past administration’s actions. I hope that President Joe Biden will understand the crisis we’re in, stop fighting our claims and our rights, and will decide to come to the settlement table in our case.”