EUGENE, Ore. (CN) – Two dozen kids may have a valid claim that climate change endangers their future, the government acknowledged Wednesday, but U.S. attorneys told a federal judge their lawsuit can’t proceed because it’s too late for the United States to stop catastrophic climate disruption.
Twenty-one kids sued the government in 2015, claiming it had knowingly created climate change by advancing an energy policy based on fossil fuels in spite of decades of its own science showing that would lead to disaster.
The government has repeatedly sought to dismiss the lawsuit, first claiming that the Constitution doesn’t guarantee the right to a global atmosphere capable of supporting human life. When that didn’t work, government lawyers asked the Ninth Circuit to take the unusual step of tossing the suit before the lower court had issued a ruling.
The appeals panel declined, finding that the normal course of litigation would resolve the government’s concerns about the separation of powers and that letting the government skip over a ruling from the federal court would justify a torrent of premature appeals that would create a log jam at the appellate level.
So the government asked U.S. District Judge Ann Aiken a second time to dismiss the case.
In oral arguments on Wednesday, U.S. Attorney Frank Singer acknowledged that some of the injuries the kids claimed they have suffered, like the flooding of their homes during hurricanes or asthma from polluted air, may indeed be traceable to climate change and could give the kids standing to bring their lawsuit.
But Singer claimed that the government couldn’t possibly manage to resolve what amounts to a global problem, saying U.S. action alone can’t return the planet to the 350 parts per million of dissolved carbon dioxide in the atmosphere that scientists have deemed to be the safe threshold.
NASA scientists recorded levels at 400 ppm in 2013.
Not only are there other countries whose emissions the United States can’t stop, Singer claimed, but the government also can’t control the polluting behavior of its own citizens.
“The United States government doesn’t force people to drive their cars or command them to ride in planes,” Singer said. “It’s a matter of arithmetic. It is really third parties that are contributing to this. It is not the United States. And so this case fails.”
Arguing for the kids, attorney Andrea Rodgers rejected the idea that the U.S. can evade such responsibility.
“By controlling the national energy system, defendants sanction the extent of third party emissions,” Rodgers told the judge. “The emissions caused by third parties are actually the direct consequence of our national fossil fuel-based energy system. The government controls how much fossil fuel is extracted on public lands, the government establishes fuel and building efficiency standards, the government controls the amount of fossil fuels that come into and go out of this country.”
The hearing at the Wayne Morse Courthouse attracted hundreds of spectators. Supporters of the kids packed three courtrooms to capacity. In one, spectators sent up a chorus of celebratory shouts when U.S. Attorney Marissa Piropato complained that the lawsuit was asking the court to set national policy.
“They want this court to run, or at least supervise, several federal agencies,” Piropato said, “which is something this court cannot do. Basically they are asking this court to tell the United States government what the end point is. To set the end point is a legislative function.”
Judge Aiken interjected.
“Well the end point – the end game is survival,” Aiken said. “Isn’t that it? That the plaintiffs can survive to pursue life, liberty and happiness?”
Aiken pointed out that the courts have taken over the administration of complex, multiagency organizations in the past, such as salmon runs, mental health agencies and foster care systems.
“This may be a different arena,” Aiken said, “but nonetheless, as crisis driven as some of those other cases that have played out in courts across this country and are still under the supervision of judges.”
The courtroom burst into applause.
Arguing for the plaintiffs, Julia Olson with Wild Earth Advocates said the time for a ruling in the case had not yet come.
“This generation has not faced a question of constitutional import greater than this one and it deserves a full and fair hearing on a fully developed factual record,” Olson said. “And then it will be ready for a decision by this court, and for review by the appellate courts.”
Olson cited the Supreme Court case Obergefell v. Hodges, which legalized gay marriage.
In that decision, Justice Anthony Kennedy wrote: “When a new insight reveals discord between the Constitution’s central protections and received legal scripture, the plaintiff’s liberty must be addressed.”
This case, Olson seemed to suggest, involves a similar quest for a new type of liberty.
“It’s a real honor and a privilege for us to be in front of the court as officers in this struggle to uphold and defend the U.S. Constitution,” Olson said. “On behalf of the generations of young people that will inherit it, I hope that every court reviewing this case does so with the care that passing down the Constitution to the next generation deserves, so that surely these young people will surely see themselves in its contours and have their dignity recognized by the judiciary that interprets it.”
Aiken said she would issue a ruling on the government’s latest motion for summary judgment “soon.”