The Trump administration, joined by fossil fuel companies, is stepping up its fight against a historic federal climate lawsuit, seeking an appeal of a November decision that allowed the case to move forward to trial. The Trump administration also argued that an earlier request — which asked the government to retain records of communication about climate change between the government and the fossil fuel industry — was overly burdensome.
“This request for appeal is an attempt to cover up the federal government’s long-running collusion with the fossil fuel industry,” Alex Loznak, a 20-year old plaintiff in the case, said in a statement. “My generation cannot wait for the truth to be revealed. These documents must be uncovered with all deliberate speed, so that our trial can force federal action on climate change.”
The lawsuit, brought by a group of 21 children and young adults against the federal government, alleges that the United States government has violated the plaintiff’s constitutional right to a healthy environment. The lawsuit is based on the old legal doctrine of public trust, which holds that it is the government’s responsibility to preserve certain natural resources for public use. Under the public trust doctrine, the children’s attorneys argue, the government must protect the commonly held atmosphere — and is failing to do so by taking inadequate action to fight climate change.
The lawsuit was initially filed against former president Barack Obama. When Donald Trump was inaugurated in January, the plaintiffs in the case replaced Obama with Trump, noting that the case had taken on even greater urgency in the face of an administration that blatantly rejects the mainstream scientific consensus on climate change.
“Our case is a direct constitutional challenge to a Trump administration at war with the reality of climate change and bent on pushing a deadly fossil fuel agenda at the expense of its citizens’ safety and human rights,” Jacob Lebel, a 20-year-old plaintiff in the case who lives in southern Oregon, said in a statement at the time. “Climate science, not alternative facts, will determine the outcome of our court trial and that gives me hope for my children’s generation and the future of this country.”
“Climate science, not alternative facts, will determine the outcome of our court trial and that gives me hope for my children’s generation and the future of this country.”
Plaintiffs in the case scored a major victory in November, when U.S. Federal Judge Ann Aiken found the group’s complaints to be valid. A major hurdle for the case was the political question doctrine, which holds that some issues cannot be heard by courts because they are under the jurisdiction of political branches of government. But Aiken found that the political question doctrine should not prevent the case from moving to trial, writing in her decision that “at its heart, this lawsuit asks this Court to determine whether defendants have violated plaintiffs’ constitutional rights. That question is squarely within the purview of the judiciary.”
The Trump administration filed a request for appeal of Aiken’s decision to the Ninth Circuit Court of Appeals on March 7. Three days later, attorneys representing fossil fuel interests filed their own motion for appeal in the case.
Julia Olson, plaintiffs’ counsel and executive director of Our Children’s Trust — the Oregon-based nonprofit spearheading the lawsuit — dismissed both motions as eleventh-hour attempts to stop the case from moving forward.
“The political question argument is a last ditch effort to avoid judicial review,” Olson said in a statement. “When our political branches deny our plaintiffs their fundamental rights, it is absolutely the court’s job to step in. This is well-settled and this defense is dead.”
Along with the political question, both the government and fossil fuel industry argue that the plaintiff’s request for documents spanning more than 60 years’ worth of communication on climate change is overly burdensome. In their motion, representatives for the fossil fuel industry wrote that “if the case proceeds to expert discovery, that phase will certainly be complicated and protracted, given the complex scientific debate that swirls around the issues raised by the plaintiffs’ lawsuit. The resources required to engage in fact and expert discovery will be enormous.”
The plaintiffs argue that the government has produced extensive discovery in other cases, citing the 17 million pages of documents produced in the case regarding the Deepwater Horizon oil spill and BP.
If the case goes to trial, it will be the first to argue the federal government has violated the Constitution in its actions regarding climate change. If successful, it would likely compel the government to take action on the issue — something the Trump administration seems uninterested in doing. Last week, EPA administrator Scott Pruitt — who sued the EPA as Oklahoma Attorney General in an attempt to stop environmental and climate regulations — contradicted widely accepted climate science when he told CNBC that carbon dioxide was not the primary cause of climate change. And Trump has often rejected climate science, calling climate change a “hoax” created by the Chinese.
While the case is pioneering for U.S. courts, plaintiffs in other countries have had success in using the judiciary to compel state action on climate change. In 2015, a court in the Netherlands ordered the government to cut greenhouse gas emissions by 25 percent compared to 1990 levels by 2020, after more than 900 plaintiffs sued the government over “insufficient action on climate change.”