Juliana v United States

Author: Gary Hart

This is a first, a guest post on this site by Bill Becker, executive director of the Presidential Climate Action Project and one of the nation’s leading spokesmen on climate dangers.  GH

 

The midterm election on Nov. 6 is one of the most important in memory. It will decide whether checks and balances will be restored to the federal government and especially to our out-of-control president.

An even more important event is scheduled to take place nine days earlier, however. It could make history by ensuring that our children and future generations have a constitutional right to a livable world.

On Oct. 29, the United States government is scheduled to go on trial for contributing to global climate change. The trial is the result of a lawsuit, Juliana v United States, filed three years ago by a group of 21 young adults and children. They allege that the federal government is violating their constitutional rights by promoting the use of fossil fuels. Fossil fuel pollution is the principal cause of global warming.

The Julianas, as I’ll call the young plaintiffs for the sake of simplicity, want the courts to rule that the federal government must stop subsidizing fossil fuels, opening public lands to fuel production, and doing other things that result in carbon pollution. They want the government to rapidly phase out carbon dioxide (CO2) emissions from fossil fuel combustion and to develop a national plan to stabilize the climate system and “restore Earth’s energy balance”.

Finally proceeding to trial would obviously be a big milestone in the Julianas’ long fight through the federal court system. It is not motivated by partisanship. It was filed when Barack Obama was president and it named his as well as many federal agencies as defendants. Now, the Trump Administration is on trial and the U.S. Department of Justice has been fighting furiously to keep the case from being tried.

Justice Department lawyers have filed motion after motion to have the case dismissed, including legal maneuvers one judge called “rare as hen’s teeth”. But so far, the legitimacy of the case has been upheld repeatedly by a U.S. District Court, a Circuit Court of Appeals, a three-judge panel and even the U.S. Supreme Court.  As I write this, the Supreme Court is deciding yet another late motion by the Justice Department to keep the trial from happening.

At one point, two powerful organizations — the American Petroleum Institute and the National Association of Manufacturers – joined the Justice Department in fighting theJulianas. Both withdrew from the case in May 2017 after it was apparent that the lawsuit probably was not going to be tossed.

So, if it is confident of its position, why is the Trump Administration working so frantically to keep the case from being tried? One reason is that the lawsuit would establish at least three historic precedents if it survived appeals that are likely to end up back in the Supreme Court. First, it could classify the atmosphere a natural resource that the government is obligated to protect as a “public trust” for this and future generations.

Second, it could force the Administration to develop a credible climate action plan, reversing Trump’s campaign to get rid of the climate-related regulations and initiatives created by President Obama. It could lead to the end of fossil fuel production on public lands.  It could force Congress to finally end the century-old practice of using taxpayer money to subsidize oil, coal and gas companies.

Third, it could establish that we all have a constitutional right to a livable future that allows us to enjoy life, liberty and property that is “free from direct and imminent property damage caused by extreme weather events”.

The Justice Department probably is worried, too, about  two recent developments have made the government’s position on climate change harder to defend.

The first development came from the largest scientific enterprise in world history — the Intergovernmental Panel on Climate Change (IPCC) – which since 1988 has assessed and synthesized the results of scientific research from around the world. On Oct. 6, the IPCC issued a startling report. It warned the international community that we have only 12 years to make epic cuts in fossil fuel pollution if we hope to avoid truly disastrous storms, heat waves, mega-fires, sea level rise and other extreme impacts.

A week later, President Trump made several mind-blowing statements that demonstrated how little he knows about climate change despite his decision to pull the United States out of the Paris climate accord. It became obvious again that Trump simply parrots old GOP talking points and his morning briefings from Fox News.

In an interview with Lesley Stahl of 60 Minutes, Trump indicated that he does not trust climate scientists, even those in his administration, because they have “a very big political agenda”. He said he is not convinced that climate change is caused by human activity. Besides, he told Stahl, climate scientists do not agree with one another and the climate always goes “back and forth, back and forth”. Also, he does not want to spend “trillions and trillions of dollars” and “lose millions and millions of jobs” to help nations mitigate global warming.

When the Associated Press asked Trump about the IPCC report, he answered “My uncle was a great professor at MIT for many years…And I didn’t talk to him about this particular subject, but I have a natural instinct for science, and I will say that you have scientists on both sides of the picture.”

In addition to these new developments and his past actions, the Julianas can point to Trump’s stated goal to make the United States the world’s principal producer of fossil fuels; his executive orders and other efforts to get rid of the Obama Administration’s climate action plan; his weakening of EPA and its ability to regulate the most powerful of greenhouse gases including carbon dioxide and methane; and his efforts to undermine the government’s science capabilities.

There is still a chance that some arcane procedural issue will come up to delay or prevent the “trial of the century”, as one Justice Department attorney has said it would be.  But if the Julianas’ trial goes forward and survives the Trump Administration’s inevitable appeals, it will make history, and none too soon.

12 Responses to “Juliana v United States”

  1. Elizabeth Miller Says:

    Director Becker,

    This is an excellent piece and I thank Senator Hart for letting you post it here. I haven’t been following the news on climate change and efforts to fight against it as closely as I should and didn’t know about this lawsuit.

    I’ll do what I can to spread it as far and wide as I can.

  2. Elizabeth Miller Says:

    A quick glance at the Presidential Climate Action project finds no information on the Juliana lawsuit.

    I’m wondering why that is …

  3. Gary Hart Says:

    Elizabeth: I’m checking with Bill, but I believe the original PCAP, which he managed and for which I was chair for some time, is dormant during the Trump era. We briefed Senator Barack Obama on it during his first campaign and he adopted many of our recommendations in his own “Climate Action Plan” which Trump abolished early on.
    Gary Hart

  4. Elizabeth Miller Says:

    The Trump era is most decidedly not a good time to be dormant.

  5. Bill Becker Says:

    Elizabeth, thanks very much for your response to my article. Sen. Hart is correct that the PCAP site has been mostly dormant these last two years. Money is one issue. Another is that PCAP focuses on what a president can do about climate change without Congress, using executive orders and regulations. There obviously is little interest in the Trump Administration, which as you know is revoking Obama’s work, including many of the initiatives we recommended and he adopted. But although PCAP has been mostly dormant, I have not. I have written for Huffington Post and more recently on various other websites, and I have a large distribution list in which I have been very critical of President Trump and have argued why he should stop ignoring global warming. In fact, I have two more parts coming up to the post you read. They will describe in some detail how Republicans partisanized climate change and deliberately cast doubt on the science in the service of fossil fuels, and how Trump is continuing that strategy . I have not identified myself with PCAP in these blogs because it is foundation-funded through a 501c3 that requires that I not be partisan.

    I have written several times about the Juliana trial on Huffington over the last three years. I will post a piece on the PCAP site when the trial is held or if, god forbid, the Administration manages to derail it. I am also preparing to reactivate PCAP and the website to try to inject climate change into the 2020 campaign and to develop climate action recommendations for candidates and winners of the 2020 election. Again, thanks for your kind response to the article that Sen. Hart posted.

  6. Gary Hart Says:

    Here is a link to today’s NYTimes article on the Juliana case:
    https://www.nytimes.com/2018/10/23/climate/kids-climate-lawsuit-lawyer.

  7. Paul G Says:

    Six years ago, right after a former president’s re-election, Senator Hart’s laser-like focus was what every president’s oath of office and primary focus must be: to keep us safe and free. Therefore, it should be no surprise he wrote the following at that time as an urgent matter of principle:

    “Someday we may better understand why we Americans treat some threats more seriously than others. During the Cold War, more often than not we overestimated the Soviet military threat and spent vast sums in anticipation of that threat. Even when our intelligence systems couldn’t find evidence of Soviet capabilities or aggressive intentions, various administrations manufactured them … as the Presidential Climate Action Project (PCAP) and other serious organizations have established, climate protection is a jobs-creator … Generations yet unborn will look back on this period with dismay if sharp reduction in carbon emissions is not undertaken. But if President Obama is bold enough to insist on transformation of energy use and transition to a post-carbon economy, he will be respected and admired, possibly even revered, by those same generations yet to come.”

    Full text http://www.mattersofprinciple.com/?p=988

  8. Elizabeth Miller Says:

    Director Becker,

    It is encouraging to see you talk about injecting climate change into the 2020 campaign. Which, if memory serves, starts Nov 7, of this year. And, it has never been more important to start early!

    I hope the next Democratic presidential nominee puts climate change front and center in his campaign, along with a number of other existential issues that the mainstream media seem incapable of covering in their zest for Trump all the time.

    Frankly, I don’t understand why there isn’t already a Democratic message forming around the critical issues facing America. But, I forget, the Democrats are too busy criticizing who Trump is instead of what Trump is doing, policy-wise and quietly behind the scenes.

  9. Elizabeth Miller Says:

    A quick question …

    How did the Obama administration react to this lawsuit – did they also try to derail or delay it?

  10. Gary Hart Says:

    Elizabeth: I’ve invited Bill Becker to respond, since I do not know the answer to your question. GH

  11. Elizabeth Miller Says:

    Thank-you!

  12. Syed GhulamQadir Says:

    Dear Mr. Hart:
    Climate change has to have a solution that is globally applicable. And currently there is no globally implementable solution to climate change. Measures currently suggested for addressing climate change – including government subsidies, business regulations, carbon tax and cap-and-trade – are economically costly and globally un-implementable. Climate change deniers instead of uselessly trying deny the problem.
    The global economy has not had a lasting and broad based recovery since the 2008 financial crisis. The reason is that the global economic system necessarily needs an upgrade that will incidentally also address climate change. Failure to address global economic crises and failure to address climate change are two sides of the same problem.
    Sinless Capitalism (my invention) will address both these problems. It does so by replacing the system of financial incentives that drive fossil fuel and other resource depleting and polluting industries and that also inherently restricts investment demand. Sinless Capitalism will make renewable energy industries competitive with fossil fuel. Changing the global energy production and consumption industries and infrastructure would generate enough investment and related demand to keep the global economy near full employment for generations.
    Sinless Capitalism had some success with Senator John McCain’s 2008 presidential campaign. Dr. Douglas Holtz-Eakin, the Chief Economist of the campaign, praised the innovativeness of my proposal and informed me of his intention to discuss and deliberate on it in the campaign’s economic policy committee.
    An essay on the system is here: http://www.NewCapitalism.org/remedies . Given your ability to see farther than most people, I think you would see the compelling merits of Sinless Capitalism. Please see if you find it interesting. Thanks.

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