When Julia Olson and her colleagues at Our Children’s Trust filed a lawsuit against the federal government in 2015 for exacerbating global climate change, they couldn’t have imagined that Donald Trump would be president by the time the case was ready for trial. They didn’t know that Supreme Court Justice Anthony Kennedy would retire, giving Trump the chance to add a conservative to the court, much less that Kennedy’s successor, the highly controversial Brett Kavanaugh, would take his seat on the high court just weeks before the scheduled trial. Neither did they expect to be preparing their courtroom arguments shortly after the IPCC issued its most dire warning yet about climate change, or that the trial would be scheduled shortly before the midterm elections.  

All these events might seem peripheral to the main point of Juliana et al v. United States, whose plaintiffs are 21 young people, the nonprofit Earth Guardians, and climate scientist James Hansen. But the emotional Kavanaugh hearings, the IPPC report, and the hotly contested midterm elections are contributing to many people’s edgy, doom-laden aura of anxiety. For some people, especially environmental activists, the Our Children’s Trust trial promised a sort of cathartic release, an opportunity to hear young people make their case for intergenerational justice. 

But now things are on hold. The trial was scheduled to begin on Monday, October 29, in the Eugene, Oregon, U.S. District Courthouse and last for six weeks. But last Friday, Chief Justice John Roberts issued an administrative stay in the case after the Trump administration filed yet another motion asking for the case to be thrown out. As of this writing, the Supreme Court has not issued a decision. So the anxiety continues.  

The plaintiffs—all of whom were 21 years or younger when the case was filed—allege that the federal government, through its executive branch agencies, is causing irreparable harm by allowing, even encouraging, fossil fuel burning to continue. The government is knowingly changing the climate, they say, and in the process abridging their rights to due process and to life, liberty, and property under the Constitution’s Fifth Amendment. To correct the problem, they say, the government must immediately create a workable energy policy to provide them with “a stable climate system capable of sustaining human lives and liberties.” For its part, the government does not dispute that the climate is warming, that humans are causing the process, and that climate change “poses a ‘monumental’ danger to Americans' health and welfare.” But government attorneys argue that the executive branch would be severely stressed by the preparation for and execution of the trial. The Trump administration also says the whole case is inappropriate because the federal government is not required to protect the atmosphere as a public trust. The government also argues that it is not the judiciary’s job to set policy, to make new laws, or to allow novel theories or new interpretations of theories to color court judgments.  

The Department of Justice’s Environment and Natural Resource Division has been headed since January 2017 by Acting Assistant Attorney General Jeffrey H. Wood, who worked as a lobbyist for the largely coal-fired utility the Southern Company and for Senator Jeff Sessions, the Alabama Republican, before Sessions became attorney general. In remarks prepared for a speech to the American Bar Association last week, Wood stated, “[T]he Oregon lawsuit is an unconstitutional attempt to use a single court to control the entire nation’s energy and climate policy.” He went on to say, “the plaintiffs in Oregon are ignoring the fact [that] clean and responsible production and use of fossil fuels remains vital to the health and well-being of the American people.”

While this might sound like standard-issue Trump administration imperiousness, the Justice Department was similarly aggressive in its defense against Juliana et. al. while Barack Obama was president. In fact, says Philip Gregory, one of the plaintiffs’ attorneys, “There has been no administration since 1965 when this burgeoning problem was made known to the president [then Lyndon Johnson] that has done anything to lessen fossil fuel emissions directly or indirectly by the federal government.”

The plaintiffs’ attorneys argue that the harms to their clients from the government’s encouragement of fossil fuel development are very personal. The young people come from a wide variety of ecosystems, each of which is suffering one or more forms of climate-related degradation, from floods to red tides, drought, air pollution, and loss of recreation. They will bear the brunt of catastrophic climate change—starting ... now. 

Gregory says the idea that the Department of Justice will be severely taxed by the trial is “entirely silly.” DOJ isn’t a defendant, he says, and thus is not the party that would be harmed; the Supreme Court’s granting of stays is intended for cases only where a party is likely to suffer harm if a case is tried in a lower court. “There’s no harm to any defendant in going forward with this,” Gregory says. “It was extremely premature for the Supreme Court to issue a stay.” The harm, he says, is on the plaintiffs’ side, not the defendants’.

Besides the “irreparable harm” claim, the government attorneys have argued that the plaintiffs have no standing to sue the government; that federal actions on climate change should more properly be addressed by the political branches; and that the children’s claim of a right to a habitable climate is an unconstitutional invention. Plaintiffs respond that all of these claims—and the many issues of scientific fact supporting the young peoples’ claims—should be addressed by the district court so that higher courts will have a complete record on which to judge any appeals. This is the normal course, known as judicial restraint, and plaintiffs’ attorneys warn that disregarding it in this case could “open the floodgates” for swarms of litigants to try skipping trials and dumping thousands of similar requests on the higher courts.

Nobody yet knows how the Supreme Court will rule on the defendants’ petition. “If you had asked me before Roberts acted, I would have said it was a Hail Mary,” says Michael Mayer, adjunct professor of climate change law at Seattle University School of Law. “Now it causes me a little more concern.” And despite their apparently peripheral relevance to this case, the political strains on the social fabric triggered by #MeToo, the Kavanaugh confirmation battle, and the contentious midterm elections add to the suspense.

According to court observers, Judge Ann Aiken, the federal district court judge hearing the case, has behaved with aplomb so far, doling out cautionary advice to both sides. She has warned plaintiffs that their broad claims are probably in need of narrowing, while advising defendants that a previous case had established that court rules allow them to “raise the same defense over and over, each time testing a new argument” even though “[i]t is a waste of judicial resources.”

“We believe Judge Aiken is heroic, like the district court and circuit court judges during the civil rights era were down in the South,” Gregory says. “We’re hopeful that this Supreme Court is equally courageous and is prepared to lead on an issue where the science is not contested.”