PORTLAND, Ore. (CN) — Young activists leading a 2015 climate lawsuit against the U.S. government may finally see their day in court after a federal judge allowed two of their claims to proceed and ordered attorneys to schedule a pretrial conference.
The Dec. 29 order from U.S. District Judge Ann Aiken arrives nine years after 21 young climate activists — all between the ages of 8 and 19 at the time of filing — accused the federal government of contributing to climate change through fossil fuel production, thus harming them and violating their constitutional rights to life, liberty and property while failing to protect public trust resources.
The lawsuit narrowly escaped dismissal in June 2023 after Aiken allowed the plaintiffs to file a second amended complaint. That decision followed a divided ruling from the Ninth Circuit in 2020 with instructions to dismiss the case for lack of Article III standing.
On Saturday, Aiken preserved the lawsuit again by sustaining the plaintiffs’ affirmative government action and due process claims under the Fifth Amendment along with their fourth claim under the public trust doctrine.
“As this lawsuit demonstrates, young people — too young to vote and effect change through the political process — are exercising the institutional procedure available to plead with their government to change course,” Aiken wrote. “While facts remain to be proved, lawsuits like this highlight young people’s despair with the drawn-out pace of the unhurried, inchmeal, bureaucratic response to our most dire emergency.”
Further on in the order, Aiken explained that, despite the government’s argument to the contrary, “the judiciary is capable and duty-bound to provide redress for the irreparable harm government fossil fuel promotion has caused.”
“Some may balk at the court’s approach as errant or unmeasured, but more likely than not, future generations may look back to this hour and say that the judiciary failed to measure up at all,” Aiken wrote. “In any case over which trial courts have jurisdiction, where the plaintiffs have stated a legal claim, it is the proper and peculiar province of the courts to impartially find facts, faithfully interpret and apply the law, and render reasoned judgment. Such is the case here.”
Plaintiff attorney Julia Olson of Our Children’s Trust celebrated the order, saying “this path to justice has been over eight long years in coming.”
“Finally, in 2024, the Juliana plaintiffs will have their long-awaited trial and the federal government’s fossil fuel energy system will be measured and judged by the fundamental constitutional rights of these youth,” Olson said in a statement. “Our democracy will be stronger for it. In this new year, our air, our water, our climate, and our children’s health will finally find protection in the rule of law.”
And Aiken denied the government’s requests for interlocutory review and its motion to stay litigation — a move that one expert described as a defiant and reckless way of turning the case into a “zombie climate case.”
“The most startling part of Judge Aiken's decision is not the sweeping assertions of constitutional rights, but her refusal to certify the opinion for interlocutory review, without comment,” Case Western Reserve University professor Jonathan Adler wrote in an op-ed for The Volokh Conspiracy.
Adler said the order is striking because Aiken previously refused to permit interlocutory review, prompting two Supreme Court orders “indicating that she had misapplied the standard in 28 U.S.C. §1292 and the Ninth Circuit's ultimate stay.”
Adler added that, unlike her previous denials, Aiken did not explain why she denied the federal government’s request, “even though nothing has changed that would alter the application of §1292's standards to this case, and the Supreme Court's admonitions remain on point.”
The Department of Justice will have no other choice but to seek review of the order, Adler wrote, indicating that without the intervention of the Ninth Circuit the Supreme Court may “step in to make sure climate litigation does not get out of hand.”
“Many climate activists are cheering Judge Aiken's latest ruling,” Adler wrote. “But should her shenanigans lead to premature high court review of pending climate claims, they may come to rue the day Judge Aiken refused to let the Juliana litigation stay dead and buried.”
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