Photo: Claire Anderson / Unsplash
“The one thing about climate change and the fundamental rights being asserted by my 21 youth plaintiffs is that they’re really threatened by the irreversibility of their rights and the rights of future generations being destroyed,” Julia Olson, founder and chief attorney of Our Children’s Trust, told Planet Experts.
The Fifth Amendment guarantees every American the right to “life, liberty and property.” Olson and the young environmentalists she represents claim the government and major oil companies – despite years of robust data — deliberately failed to take actions to mitigate the extreme and irreversible impacts of climate change, thus jeopardizing those very rights.
Since he took office, President Trump has aggressively berated well-established scientific consensus on the causes and effects of climate change while simultaneously attacking years of environmental policies that put downward pressure on America’s emissions needle. Specifically, he’s attacked fuel-efficiency standards, the Clean Power Plan, attempted to conceal or destroy climate data and is dismantling the Environmental Protection Agency. In short, Trump is burning America’s climate action plan up in smoke and the country’s carbon footprint – as well as the future of our planet – is at risk.
Federal climate action looks dim, yet this lawsuit – Juliana v. United States — could literally change the national climate agenda and put the U.S. back on track to meet Paris Agreement targets. If Olson and the kids prevail, the federal government would be legally required to take swift and concerted action to reduce America’s greenhouse gas emissions to reach 350 ppm by 2100.
Will climate denialism prevail in the land of the free, or will the brave youths, armed with the Constitution and the legal guidance of Our Children’s Trust, set the country on track to a low-carbon future?
Combating Climate Denialism
In November 2016, U.S. District Court Judge Ann Aiken ruled that Olson and the youths have legal claim to move forward with the case and go to trial. Aiken clearly stated, “This lawsuit is not about proving that climate change is happening or that human activity is driving it. For purposes of this motion, those facts are undisputed.”
Although plaintiffs are pressing charges against the federal government, the American Petroleum Institute (API), the National Association of Manufacturers (NAM) and the American Fuel & Petrochemical Manufacturers (AFPM) entered the case claiming that the verdict could cause irreversible harm to their business and shareholders.
The Trump Administration and industry lobbyists attempted to appeal and stay the case by issuing a motion requesting the Ninth District Court review judge Aiken’s verdict and a request stating that case preparation be postponed until the first motion is addressed.
The defendants also tried to undermine Olson’s appeal for the court to preserve relevant climate science.
One of the plaintiffs, 20-year-old Tia Hatton, said “The Trump administration and the fossil fuel interests have acknowledged our lawsuit is a threat to their profit-seeking motives. Their move to appeal Judge Aiken’s historic decision to hear our case is nothing more than an extension of their personal interests and preposterous climate denial. These interests render their moronic dismissal of the merit of the constitutional rights that my co-plaintiffs and I, as well as future generations, have to a stable climate system.”
Although internal records from ExxonMobile dating back to the 1970s outline the connection between fossil fuels and climate change, the defendants — “API in particular — are taking the position that they don’t have information about whether fossil fuel combustion causes CO2 emissions and therefore climate change. At this point we have to prove that they knew this,” Olson said.
The children’s lawyer has requested emails that then CEO Rex Tillerson sent using the Wayne Tracker alias to be handed over by Sunday. “Having the CEO of Exxon and one of the executive committee board members of API communicating by email that climate change is a problem, talking about how they are going to deal with it, and any information on how to influence federal climate and energy policies is relevant to the case,” Olson noted.
Exxon claims a technical malfunction may have deleted the emails.
Although the outgoing Obama Administration confirmed the scientific validity of the case’s core climate facts, API, NAM and AFPM are also defendants in the case. So, if they present alternative evidence to the court, the plaintiffs must be able to dispute those arguments with solid facts.
The court asked the White House and industry groups to take a position on the federal defendant’s admissions by early May, said Olson, after which she will know what facts she needs to run full discovery on and litigate.
Despite attempts to derail the case, Olson said, “The defendants didn’t meet their obligations for an early appeal or a stay. We are confident that those motions will be denied.”
“A lot of the legal questions that the defendants are asking the Ninth Circuit Court of Appeals to review really depend on the facts of the case, so presenting the facts for trial and fully developing that factual record for the court’s decision is important. That’s the job of the district court only, not a job for the court of appeals.”
“Bad facts make bad law and we’ve got the strongest evidence I’ve seen in my 20 years of practice,” assured the environmental attorney. “It’s hard for me to think of an issue that would cause us to lose.”
Worried that the White House could scrape climate data from government websites, Olson sent a document preservation letter to the Department of Justice (DOJ) to ensure all evidence be preserved for the case.
“I don’t have evidence that things are being destroyed but I fear they might disappear,” Olson said. “The DOJ has assured us they’re preserving relevant documents.” However, the DOJ has yet to disclose specifics regarding preservation and the youths’ lawyer has some concerns, especially related to emails. Destroying evidence before a trial is a federal offense and would escalate legal troubles for the defendants.
Olson’s confidence is inspiring, but if the children’s climate lawsuit succeeds how will mitigation be enforced?
The environmental lawyer explained that in the case of a victory, the administration would be under a court order to “do the opposite of what they are doing right now.”
“Courts have equitable authority to issues orders for injunctive release to maintain jurisdiction to ensure they’re fully implemented,” she said.
In fact, Olson draws insight from historic cases like Brown v. the Board of Education in which the court ended up taking over and issuing specific directives on desegregation. She also drew inspiration from other discrimination-related cases such as Obergefell v. Hodges and Brown v. Plata.
Broader Implications for Global Climate
This case is a beacon of hope amongst the bombardment of alternative facts and climate denialism coming from the Trump Administration. In addition to its domestic relevance, this battle has huge implications for the future of our planet.
Experts say that the Paris Climate Agreement is our last chance to reduce emissions enough to avoid the most catastrophic and irreversible impacts of global climate change.
“International agreements are only as good as their domestic enforcement,” Olson noted.
“We must hold this country responsible for what’s its done in the world,” she said. “We are going to turn this thing 180 degrees around and that’s going to ripple across the world.”