by Bruce Dunlavy

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Despite the continuous effort of the current administration to roll back and dismantle the regulatory gains made in environmental protection and climate change abatement, there is good news if you look for it.

It has been a while since I updated readers of this blog on the activities and progress of my friend Xiuhtezcatl Martinez and the rest of the plaintiffs in the case of Juliana, et al., v. United States, the lawsuit brought by 21 young people aiming to compel the Federal government to take real action to abate climate change and ensure a livable planet for today’s young people and their descendants in future generations.

One of the most important things my mother told me was this: “Son, five years may seem like a long time to you, but not to a lawyer.” Few cases, especially those which break new ground, proceed rapidly or consistently through the courts. Juliana was filed in 2015, and has seen three years of “one step forward, half a step back.”

Juliana contends that the USA government has a duty to protect the environment against destructive change, and that by its actions to exacerbate climate change and its omissions in abating it, the government has violated the youngest generation’s constitutional rights to life, liberty, and property, and failed to protect essential resources that are held in public trust.

The young plaintiffs, who are now 10 to 21 years old, have been guided by Our Children’s Trust and received additional support from numerous other environmental activist organizations. On the other side, the fossil fuel industry intervened as defendants in support of the Federal government. Another adage in the business of law admonishes that when you sue the government you are up against an opponent with unlimited time and free lawyers. Combined with the money and influence of the oil, gas, and coal interests, the government opposition was formidable indeed.

Nevertheless, over the course of three years, the plaintiffs won decision after decision, defeating every roadblock placed before them. With amicus curiae briefs filed by dozens of interested parties, including law professors, scientists, and organizations such as Sierra Club, Greenpeace, League of Women Voters, and 17 faith-based environmental organizations, Juliana has advanced to the stage of trial in U.S. District Court in Eugene, Oregon.

The Obama administration initially represented the defendant (the United States) in the case, but before it had progressed very far, the Trump administration took over the defense shortly after the first issuance of a judge’s denial of government motions for dismissal. In mid-2017, the fossil fuel industry was released from its place as defendant, leaving the Federal government as sole respondent in that capacity.

A trial date was set for February 5, 2018. The Trump administration petitioned for a writ of mandamus to stop the trial, and the Ninth Circuit Court issued a stay which prevented the trial from starting as scheduled until the writ could be adjudged. Within five weeks, the Court denied the Trump administration’s request, calling it “drastic and extraordinary.” The case was set for trial on October 29, 2018. The Trump administration responded with a petition to prevent further evidential discovery, which was denied by a Federal Magistrate Judge. A second request for a writ of mandamus was denied by the Circuit Court.

In July, 2018, the U. S. Supreme Court unanimously denied the Trump administration’s petition for a stay of discovery that would have sent the case to trial before all the evidence was examined. A flurry of motions by the government followed, including two more requests for a writ of mandamus and another petition for a stay of evidentiary discovery (what are they afraid will be found if evidence is examined?)
See the source imageImage credit: ourchildrenstrust.org

On November 8, 2018, th3e Ninth District Circuit Court finally agreed to the Trump administration’s request for a stay, but it is a temporary stay that only delays the trial. The judge in the case, District Court Judge Ann Aiken, has stated that she will announce a new trial date as soon as the stay is lifted.

We can see that the Federal government recognizes that this case has merit and that it is not going to crumble in the face of opposition. Juliana, et al., v. United States will get to trial, and when it does the evidence presented and the arguments made will no doubt be dramatic. By the time it plays out, this case could be one of the most significant of the century. Stay tuned.

Meanwhile, Xiuhtezcatl continues to accrue recognition and awards. After last year’s selection as recipient of the Vice “Human of the Year” award and this year’s finalist status for the Shorty Award (best work in social media) in the category of Activism, he received the MTV-EMA in the category of Generation Change.

The irrepressible X has also continued and expanded his artistic work. After completing high school, he began devoting his energy to his music, both writing and performing the socially conscious hip-hop that has been his métier from the start. He has been performing both on tour and in the studio. Last month, Xiuhtezcatl spoke and performed at the University of Southern California, and he will perform in Denver December 15 and in Chandler, Arizona, on February 9, 2019. You can view his music video “Break Free” here.

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