Federal court dismisses teenagers’ climate change case against the government

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A federal appeals court dealt the Trump administration a victory Friday by dismissing in a split ruling a novel climate change lawsuit brought by a group of mostly teenagers, but the judges’ decision may also lay the groundwork for plaintiffs to continue their fight.

Two judges on the U.S. Court of Appeals for the 9th Circuit “reluctantly concluded” in the ruling that the federal courts weren’t the right venue for the plaintiffs to make their claims, saying that they must take up their argument with the executive branch of Congress. What the plaintiffs were asking for, a court order requiring the government to develop a comprehensive plan to reduce greenhouse gas emissions, is beyond the power of the courts, the judges said.

Nonetheless, the judges agreed that plaintiffs were experiencing harm from climate change, and the federal government was a significant contributor to those harms.

The judges “got to the edge of the water, stuck their foot in, but just got scared at the last minute to jump in,” said Bill Snape, a fellow and practitioner-in-residence at American University Washington College of Law.

“The battle is definitely still on,” added Snape, who helped write an amicus brief backing the plaintiffs and also serves as a senior counsel to the Center for Biological Diversity.

That’s in part because, although the court dismissed the case, it also admitted the case’s record left “little basis for denying that climate change was occurring at an increasingly rapid pace.” The ruling also noted the record “conclusively established that the federal government has long understood the risks of fossil fuel use and increasing carbon dioxide emissions” and “established that the government’s contribution to climate change was not simply a result of inaction.”

The case “is far from over,” said Julia Olson, executive director of Our Children’s Trust and co-counsel for the plaintiffs. She added in a statement that the young plaintiffs would ask the full 9th Circuit to review the panel’s ruling “and its catastrophic implications for our constitutional democracy.”

If the full court takes it up, judges would again have to grapple with whether they have the power to order the remedy the teenagers are seeking.

“At its core, the Juliana case was a political matter brought in federal court,” said Jeff Wood, a partner at Baker Botts LLP. Wood worked on the lawsuit, Juliana v. United States, during his tenure as acting assistant attorney general for the Justice Department’s environment division in the first year and a half of the Trump administration.

Nonetheless, he added, “If the appeals continue, there are aspects of today’s decision that did not go entirely the government’s way and which the government may welcome a chance to further correct.”

For example, the two-judge majority rejected a claim by the Trump administration that the plaintiffs could only bring their challenges under the Administrative Procedure Act.

The plaintiffs were instead bringing several novel legal claims against the federal government. They argued the federal government had violated their constitutional right to a livable climate by taking actions that supported fossil fuels. If recognized by the courts, that would have been a new constitutional right.

Their lawsuit also brought federal public trust claims, arguing the federal government was neglecting its responsibility to hold lands, waters, and wildlife in trust for its citizens. The young plaintiffs argued that public trust also included the climate.

The group of 21 plaintiffs brought the lawsuit in 2015, challenging the Obama administration. The teenagers notched a small victory shortly after President Trump was elected when a federal district court in Oregon ruled the case could move forward to trial — but the 9th Circuit ultimately took up the case after the Supreme Court intervened.

Wood and other attorneys weren’t surprised the court dismissed the case.

“No U.S. court has ever even come close to ordering the kind of relief that the activists were seeking in this case,” said Jeff Holmstead, a partner at Bracewell LLP who served as air chief of the Environmental Protection Agency during the Bush administration.

Holmstead said that although other “creative lawyers” would attempt to bring climate lawsuits with “new theories” in the future, “their chances of success are very low.” He added that the 9th Circuit’s decision only ramps up the pressure on lawmakers to address climate change.

Snape, though, said he was optimistic the full 9th Circuit would take up the case. The reason the majority judges gave as to why they couldn’t order a climate plan from the government “just doesn’t hold up,” he said.

He pointed to several executive actions that he said were fully within the court’s power to order of the executive branch, including directing the federal government to halt fossil fuel leasing on federal lands or to pause the export of fossil fuels to other countries.

In a strongly worded dissent, Judge Josephine Staton accused her colleagues of doing nothing despite accepting the United States was reaching a climate tipping point.

“It is as if an asteroid were barreling toward Earth, and the government decided to shut down our only defenses,” she wrote. “Seeking to quash this suit, the government bluntly insists that it has the absolute and unreviewable power to destroy the Nation.”

[Read more: California sues to block Trump plan for opening 1m acres of state lands for drilling and fracking]

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