by Bruce Dunlavy
(My blog home page and index of other posts may be found here.)
A recurrent topic for A Good Man to Know has been the case of Juliana, et al., v. United States, in which 21 young people, including my friend Xiuhtezcatl Martinez, have brought suit against the government for failure to address the issue of climate change. The plaintiffs argue that Federal authorities have failed in their responsibility to ensure a livable, sustainable future for America’s (and, by extension, the world’s) youth.
What might seem at first glance to be a quixotic mission has steadily progressed through the courts, and last week claimed a significant victory over the forces arrayed against it.
Image credit – tiki-toki.com
For those who have not followed this case, here’s a little background. The plaintiffs are a diverse group of young environmental activists, still today no older than 21 and as young as 10, who have been fighting this case for three years. They built their case on the legal concept that “government property” is actually public property held by the government as a public trust, to be administered for the public’s benefit. This includes parks and wildlife, rivers and streams, and the atmosphere – in short, the usability of the Earth.
Under the aegis of Our Children’s Trust, an organization dedicated to securing “the legal right to a stable climate and healthy atmosphere for the benefit of all present and future generations,” Juliana was brought to Federal court in 2015. Its aim is to compel the Federal government to perform its duties as guardian and trustee of the needs of the public, now and in the future. In the intervening years, the case has worked its way through the Federal court system, and eventually was set for a February 2018 hearing before the Ninth U.S. Circuit Court.
One of the wisest pieces of advice my mother ever gave me was this: “Son, five years may seem like a long time to you, but not to a lawyer.” The Trump administration, which inherited the status of defendant in the case from the Obama administration, has continued the latter’s tactics of deny, delay, and defend (in that order).
An old legal adage says that when you go up against the government in court, you start from a distinct disadvantage, because the government has unlimited time and a free lawyer, and you don’t. Your adversary is in a position to file motion after motion, request continuance after continuance, and otherwise throw impediments designed to exhaust your money and sap your strength. Their hope is that you will give up or die before you can complete your mission.
“You can’t fight City Hall,” we have always been told. There is a response to that, attributed to Audre Lorde, “‘You can’t fight City Hall’ is a rumor being spread by City Hall.” The plaintiffs in Juliana are proving Lorde right. Who would have thought it? A group of 21 young people, with the assistance of a non-profit organization devoted to protecting the public good from private greed and government indifference, could successfully argue in court that they are being deprived of their Constitutional right to a habitable climate.
The plaintiffs have succeeded so thoroughly that the problems of those who would sue the government are now being visited upon the government itself. In a rear-guard action trying to throw a last roadblock in the path of going to trial, the Trump administration argued that allowing the case to proceed would lead to “burdensome litigation.” The irony hits you like a shovel.
On March 7, 2018, a Ninth Circuit Court panel ruled unanimously that the case will proceed. For the first time in history, the Federal government will be forced to explain its lack of action in preventing or mitigating climate change. The government must defend its position of inaction in the face of its public trust responsibilities.
With its firm refusal to interfere with the case before it proceeds through District Court, the Circuit Court returned it to Judge Ann Aiken in the Oregon District. Judge Aiken is no pushover. Since she has current jurisdiction in the case, it was her decision that it should proceed to trial which the government tried to have overturned in Circuit Court. In Judge Aiken’s initial refusal to dismiss the case, she admonished that dismissing the case before it is heard on its merits could be construed to condone the actions of the government described as a “knowing decision to poison the air.”
There is a long way to go in Juliana. Any decision rendered in District Court will surely be appealed to the Circuit Court and the U.S. Supreme Court, a process that will eat up more years, probably more years of no action on climate change, possibly more years of pernicious rollbacks of existing climate-change protective laws. In addition, as the merits of the case are heard, the scope of the complaint will no doubt be narrowed and the potential remedies reduced.
Will the young activists succeed? If you mean will they win their case, the answer is, “Nobody knows.” It seems like a long shot, but it’s not so long as it was in 2015, when most observers expected it to be laughed out of court on the first day. Today, the plaintiffs are winning. They are winning on procedural issues, specifically the right just to be heard. But now they will be heard. The merits of the case will be discussed in open court. I, for one, cannot wait to see it happen and to find out what is revealed.
These young people are not going to give up. They are not going to quit. They are not going to abandon their future. Like the students of Marjory Stoneman Douglas High School who – in the face of everything from the political influence of money to shameful (and false) personal attacks – are demanding action on the issue of firearms, the Juliana plaintiffs are continuing to spread their enthusiasm. One of the Stoneman Douglas students, Caleb Kasky, told Bill Maher on HBO’s Real Time that he and his cohort are grateful to the Baby Boomers and Generation X for giving them the opportunity to fix the world those earlier generations damaged (he said it a bit more colorfully!).
Xiuhtezcatl, also 17, is now on a performance tour which brings the message to others in contemporary musical and poetic form. You can see his schedule here, and I urge you to attend a show if you can. I see great things continuing, and I cannot overstate my gratitude to the heirs of the young people of previous generations of activists. They are the latest phalanx of a proud and vital tradition in the world.