PORTLAND, Ore. (CN) – The federal government got a fifth try Tuesday to dodge a trial on claims it is actively worsening climate change and infringing the right to a future on a habitable planet.
Arguing for the government at the Ninth Circuit was Jeffrey Bossert Clark, an avowed climate denier who said at a 2017 hearing to confirm him as head of the Justice Department’s environment division that he stood by an earlier statement calling climate science “contestable.”
Clark told the three-judge panel Tuesday the case filed by 21 kids is “a direct attack” on the separation of powers that would not have stood in England’s Courts of Westminster, before the founding of the United States.
Julia Olson, attorney for the kids, took issue with Clark’s reasoning.
“At the courts of Westminster, women and people of different races wouldn’t have rights to bring cases,” Olson said. “And if we look back on the 20th century, we can see that race and sex discrimination were the constitutional questions of that era. And when our great-grandchildren look back on the 21st century, they will see that government-sanctioned climate destruction was the constitutional issue of this century.”
The plaintiffs want an order forcing the United States to adopt policies to prevent the worst climate disaster. In response to the 2015 lawsuit, Obama-era government attorneys detailed the havoc created by decades of policy promoting the fossil fuel economy. The Trump administration, however, has argued first that there’s no right to a livable climate and later that the problem is too global and advanced to be solved by a court order.
Then the government filed a flurry of appeals, essentially asking to skip normal judicial process. It asked the Ninth Circuit and the U.S. Supreme Court twice each to take the unusual step of tossing the case before the trial judge had ruled. Both declined, with the Ninth Circuit ruling in 2018 that it “remains the case that the issues the government raises . . . are better addressed through the ordinary course of litigation.”
This past October, the trial court found the kids had a right to trial based on “knowing governmental action that affirmatively and substantially damages the climate system in a way that will cause human deaths, shorten human life spans, result in widespread damage to property, threaten human food sources and dramatically alter the planet’s ecosystem.”
But days before trial, the government again asked the Ninth Circuit to intervene. The trial court reluctantly certified orders for interlocutory appeal, noting its preference for the case to go to trial for full factual development before appeal.
The kids asked the Ninth Circuit to speed the process, claiming the Trump administration is expanding the fossil fuel-based energy policies “that are contributing to and worsening plaintiffs’ irreparable injuries.”
In court documents, they pointed to government reports like one issued April 9 by the U.S. Energy Information Administration showing U.S. production of crude oil at all-time high. Crude oil exports nearly doubled in 2018 and coal exports hit their highest level in five years.
In March, the Bureau of Ocean Energy Management offered 78 million acres in the Gulf of Mexico for drilling, including spots 231 miles offshore and at depths of 11,115 feet. The agency plans six similar sales over the next two years and another at Cook Inlet, Alaska.
Joined by U.S. Circuit Judge Mary Murguia and U.S. District Judge Josephine Staton, sitting by designation from Central District of California, U.S. Circuit Judge Andrew Hurwitz told Olson he was “sympathetic” with her claims but takes seriously the government’s argument that resolving it in her favor may violate the separation of powers.
“The issue here is whether this branch of government, represented by the three of us here today, has the ability to issue the relief that you seek,” Hurwitz, a Barack Obama appointee, said. “You don’t doubt that Congress and the president could give you the relief you seek without use?”
“I don’t think Congress and the president ever will without you telling them to,” Olson replied.
“We may have the wrong Congress and the wrong president,” Hurwitz said. “That’s happened from time to time. The question is whether we get to do something about that.”