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Youth climate suit in Oregon survives order to dismiss

The Ninth Circuit had found that the activists could not prove redressability, but they won leave to try again in an amended complaint.

PORTLAND, Ore. (CN) — A federal judge agreed Thursday to let youth climate activists continue a 2015 suit that accuses the government of subjecting them and future generations to the devastating effects of climate change.

The plaintiffs — led by 21 young climate activists between the ages of 8 and 19 at the time of filing — accuse 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 young plaintiffs were initially victorious in 2016 when U.S. District Judge Ann Aiken denied the government’s motion to dismiss, writing that she had “no doubt that the right to a climate system capable of sustaining life is fundamental to a free and ordered society.”

However, Aiken later took up the case on remand from the Ninth Circuit after the appeals court had found in 2020 that the activists failed to demonstrate redressability, a requirement to establish Article III standing, and that their case should be dismissed as a result.

“The plaintiffs have made a compelling case that action is needed; it will be increasingly difficult in light of that record for the political branches to deny that climate change is occurring, that the government has had a role in causing it, and that our elected officials have a moral responsibility to seek solutions,” wrote U.S. Circuit Judge Andrew D. Hurwitz, a Barack Obama appointee.

But while panel judges did not dispute that the broad relief sought could push the government into action – relief that effectively forces the government to cease fossil fuel use and create a plan to decrease harmful emissions – Hurwitz wrote that the judges reluctantly concluded that the case “must be made to the political branches or to the electorate at large, the latter of which can change the composition of the pollical branches through the ballot box.”

“That the other branches may have abdicated their responsibility to remediate the problem does not confer on Article III courts, no matter how well-intentioned, the ability to step into their shoes,” the Ninth Circuit ruling states.

The activists countered with a motion to amend their complaint, arguing they could show redressability through the U.S. Supreme Court’s 2021 decision in Uzuegbunam v. Preczewski, a case where the higher court held that a moot constitutional challenge seeking nominal damages could redress past injuries.

“Central to the court’s ruling that nominal damages of $1 sufficed for redressability, it recounted our nation’s well-settled history that where a wrong is done to a right, even when solely in the past, there will be a remedy given, even if it is nominal or declaratory in nature,” the plaintiffs’ lawyer Julia Olson wrote in the motion to amend.

Considering the activists' ongoing injuries, Olson said they do not need to rely on nominal relief because they have the Declaratory Judgment Act. The attorney also argued that if declaratory judgment is not enough for the redressability prong of Article III standing, the Declaratory Judgment Act would be unconstitutional since it informs Article III courts that they can grant such relief when no other forms are available.

“But the long history of our country and judicial remedies, confirmed by yesterday’s judgment in Uzuegbunam, demonstrates the Declaratory Judgment Act is consistent with Article III,” Olson wrote in the March 2021 filing. “If the Declaratory Judgment Act is constitutional, then declaratory relief is adequate for the redressability prong of Article III standing in an actual case or controversy where injury in fact and causation are both demonstrated.”

Since the motion’s filing, attorneys general in Oregon and five other states have filed an amicus brief in support of the activists, while several Republican attorneys general sought to obstruct settlement negotiations and have the case dismissed. By the end of 2021, however, such negotiations fell apart, and the plaintiffs have since waited on Aiken’s ruling for their leave to amend.

The judge granted the request Thursday in a 19-page opinion and order.

"The declaration that plaintiffs seek would by itself guide the independent actions of the other branches of our government and cures the standing deficiencies identified by the Ninth Circuit," wrote Aiken, a Bill Clinton appointee. "This court finds that the complaint can be saved by amendment."

At trial, Olson and two other attorneys from Our Children’s Trust – Philip Gregory and Andrea Rogers – plan to call “Nobel Prize-winning and other renowned experts to testify,” according to a Thursday press release from the law firm. That testimony, the firm says, will show that the government has known for over 50 years that carbon dioxide pollution from fossil fuels causes global warming and destabilizes the climate and that, despite this knowledge, it has promoted fossil fuel production while failing to implement its own carbon reduction plans.

Attorneys for the U.S. Department of Justice did not immediately respond to a request for an interview.

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