The kids’ climate lawsuit isn’t dead yet

Even though judges tossed out his big case last week, lawyer Phillip Gregory, who represents 21 youth in an unprecedented climate lawsuit against the U.S. government, was in a superb mood Thursday morning. “I’m doing amazing,” said Gregory. 

The case, for now, can’t go to trial.

But Gregory isn’t the least bit dour, because both he and his young clients believe the courts, eventually, will rule in their favor. Their historic, five-year-old lawsuit argues that the U.S., by supporting an energy system that emits potent climate-disrupting greenhouse gases into the atmosphere, infringes upon their constitutional rights to a stable future. 

“Our youth plaintiffs continue to believe in our constitution and believe the courts will allow a trial to go forward,” said Gregory.

That’s right. These youth are still trying to get a trial, but have been stymied for years. In a weighty decision last week, a three-judge panel in the powerful Court of Appeals for the Ninth Circuit in Oregon “reluctantly” ruled, two to one, that the courts can’t possibly deal with such a complex, global problem like climate change — even though it’s threatening Americans. 

At one point, the youths’ case was going to go to trial in Oregon. It was set for Oct. 29, 2018. But the Supreme Court stepped in and stopped the trial just before it could even begin, saying lower courts needed to wrangle with whether the lawsuit truly deserved a trial. The lower court ultimately, and hesitantly, decided “nope.”

But the youthful plaintiffs still have some cards to play — albeit not many. And keeping the lawsuit alive comes with substantial challenges, and some risks, too.

The plaintiffs and their lawyers plan to ask a new panel of federal judges in the Ninth Circuit to review the decision to toss their case. It’s called an “en banc review,” and the plaintiffs hope these other judges will overturn the decision, ultimately allowing the climate case to go to trial in the 9th circuit. The Ninth Circuit hears between 15 to 25 en banc cases each year, but receive about 1,500 en banc requests each year.

“It’s absolutely a good step,” said Kassie Siegel, director of the Climate Law Institute who has no involvement in the case.

That’s because it’s possible a new panel of federal judges might think the youths’ case should be heard in an official trial, as both Congress and the president have failed to ambitiously rein in the prodigious carbon emissions that are indisputably heating the planet (though coal burning is plummeting in the U.S., leading to small drops nationally). There’s potential these judges could come to a decision similar to one of the three Oregon judges, Judge Josephine L. Staton, who was outvoted two to one. Staton gave a profoundly impassioned defense of the youths’ right to go to trial.

“A great word to use is ‘blistering’,” said Gregory, describing Staton’s opinion. 

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

The young plaintiff’s petition to have the recent decision reviewed must be filed by early March. What the new judges might decide, however, is unknown. 

“Nobody can say for sure what’s going to happen in any phase of litigation,” said Siegel. “There’s no way to say for sure how any panel of judges is going to rule.”

Yet, the chances of new judges allowing the case to go to trial are “vanishingly small,” said Patrick Parenteau, a professor of law and senior counsel in the Environmental and Natural Resources Law Clinic at Vermont Law School. (Parenteau, who also had no role in the lawsuit, vehemently thinks the judges should have allowed the youths’ case to go to trial.)

“It’s a math question,” he said. 

That’s because there are 29 active judges in the Ninth Circuit, and a majority of them (15) must agree to allow the en banc review to happen at all. But two Democratically-nominated judges (who are more likely to think climate change is a problem) just tossed the case. What’s more, 13 of the Ninth Circuit judges are Republican-nominated, nine of whom were selected by President Donald Trump, who rejects Congressionally-mandated climate science. So it might be very difficult to get a majority of these judges to agree to an en banc review.

But that’s not all! Even if a majority of judges agree to the review, a new 11-judge panel will be randomly chosen to review the case. It’s no guarantee the majority of these judges will be left-leaning, and potentially supportive of a climate trial.

What’s more, allowing a new panel of judges to hear the case (if they even decide to) comes with big risks, warned Parenteau. The original three-judge panel, though they tossed the case, did all agree there is a serious climate crisis. They “reluctantly” decided the courts couldn’t deal with climate change. But, a new panel could decide that climate change isn’t a problem at all, and completely wipe that ruling — an important legal opinion — off the books. 

“What you could lose is an opinion that gave you almost everything,” said Parenteau. “You could get a much worse decision. [The judges] could disagree that it’s a climate crisis.” 

Or, Parenteau conceded, the judges could do the opposite, and after reviewing, decide to send the case to trial.

That’s what Gregory, one of the plaintiff’s lawyers, is banking on. He and his young clients want to go to trial.

The youth Gregory represents are contending with the well-predicted consequences of a warming planet — consequences that are expected to grow worse. One plaintiff in Louisiana awoke one morning to ankle-deep water flooding her home during an unusually severe storm. The floodwaters rose, and sewage soon poured through the house. The floodwaters didn’t recede for weeks. Another said that hotter, drier conditions exacerbates her asthma. 

“It’s harm that rises to a constitutional violation to the youth of America,” explained Gregory. 

The plaintiffs want the courts to demand the U.S. remedy the problem, perhaps by requiring efforts to slash the nation’s emissions of heat-trapping greenhouse gases, or banning fracking on federal land, explained Gregory.

The courts have certainly done similar things before when lawmakers failed American citizens. The U.S. Supreme Court unanimously ruled segregation was illegal in 1954 and called for schools to be desegrated with “deliberate speed.” Some schools “desegrated peacefully,” while other schools encountered white, racist mobs who resisted desegregation. But, critically, publicly-sanctioned segregation became illegal everywhere (though segregation still exists in other ways as many kids go to schools in districts dominated by either white or non-white populations).

“It’s never going to be over.”

“New situations require new remedies,” emphasized Gregory, noting the Founding Fathers couldn’t have possibly envisioned that carbon emissions would destabilize the climate and threaten the nation’s prosperity. 

There’s no question the youth climate trial has big challenges ahead, and ultimately federal judges may never grant them a trial. But in many ways, Gregory and the plaintiffs have already won. 

“This case has brought tremendous attention to the climate emergency,” said the Climate Law Institute’s Siegel. 

For now, the case still has legs. Whatever happens, this one case is just part of what would be an unprecedented decades-long (at least) movement to transition the U.S. energy, industrial, and transportation sectors away from fossil fuels. “This is one case — and it’s done a lot of good,” said Parenteau, referencing its diminishing chances of going to trial.

But remember this, he stressed:

“It isn’t over — it’s never going to be over — never. We unleashed forces that will not be tamed in 10, 20, 30, or 40 years. We’re talking about a century-long battle.”