Twenty-one children, adolescents, and young adults — all between the ages of 11 and 22 — were set to face off against the United States in an Oregon courthouse on Oct. 29.
But instead, the highest court in the land has temporarily halted the unprecedented climate trial after the Trump administration asked the Supreme Court — in a 38-page request — to put things on hold.
The young plaintiffs, some still in grammar school, are suing the U.S. government for supporting a national energy system that emits prodigious amounts of greenhouse gases into the atmosphere, thus stoking human-caused climate change and endangering their futures.
The group argues in Juliana vs. United States that, as the adverse consequences of such a climate disruption mount, the government is depriving them of their guaranteed rights to life, liberty, and property.
Image: Robin Loznak/Our Children's Trust
A trial would give scientists and government officials an opportunity to take the stand, forcing a federal court to consider sworn testimony about the accelerating rate of climate change, which is now unquestionably human-caused.
"The federal government is scared to put climate science on trial," Philip Gregory, an attorney representing the 21 young plaintiffs, said in an interview.
"They’re very, very scared that the public is going to hear witnesses under oath," said Gregory. "Anyone who gets up on the witness stand and takes an oath is forced to tell the truth about the current state of our climate based on climate science."
"The federal government doesn't want that."
To prevent a landmark trial, Department of Justice lawyers have now argued that defending the U.S. against these young plaintiffs will cause "irreparable harm" to the United States. Specifically, the Justice officials are speaking about the government's inability — financially and personnel-wise — to take on such a trial.
As the U.S. government claims: "It could well be years into the future before the government could appeal as of right to seek relief from such an egregious abuse of the civil litigation process and violation of the separation of powers. That is plainly irreparable harm."
"I find this argument absurd," Michael Burger, executive director of Columbia University's Sabin Center for Climate Change Law who has no role in the case, said over email.
"To me, that’s ludicrous," said Gregory.
"It's utterly absurd and has no legal merit," Kassie Siegel, director of the Climate Law Institute who has no involvement in the case, said in an interview.
These attorneys are perplexed by the government's unusual argument because the Department of Justice — backed by the deep pockets of the federal government — largely exists to go to trial, and in many cases, decides whether the case should be tried in the courts. It's what they do.
"The Civil Division of the U.S. Department of Justice conducts hundreds of trials each year," noted Burger.
"The Department of Justice trial lawyers — who try cases every week — would have to try this case," said Gregory. "But that's what they do for a living."
What's more, the government did not present any new evidence that proves going to trial will inevitably hit the government with untenable levels of harm or burdens of work.
Back in July, the Supreme Court already rejected the Department of Justice's attempts to stop the trial.
"They need to show irreparable harm," said Siegel. "Money and damages generally are not irreparable harm."
If all had gone according to plan, the trial would have already have started, on Monday, Oct. 29.
"There is simply no reason to depart from standard court procedures here," said Burger. "And, to the best of my knowledge, the court has not done so before."
The Supreme court — by halting the trial — is now acting inconsistently, as it previously gave the case the go-ahead, just months earlier in July.
But, notes Siegal, there has been one significant change: The addition of the conservative judge, Justice Brett Kavanaugh.
"The only thing that’s different is the composition of the Supreme Court," said Siegal.
Image: Robin Loznak/Our Children's Trust
And since Kavanaugh's appointment, which gives the Supreme Court a conservative majority, the Department of Justice has now halted or asked the Supreme Court to stop certain trials now taking place in lower federal courts.
"The federal government, since the appointment of Justice Kavanaugh, has taken to seeking to have the Supreme Court review decisions by the district courts and to stop district courts around the country from having trials," said Gregory, citing a developing case in New York involving citizenship.
The kids' climate trial is another casualty.
To be fair, however, the Obama administration also opposed the kid's climate suit against the U.S. But circumstances were a bit different.
The Obama government sought to curtail greenhouse gas emissions, but didn't want to hand the reins to the courts.
Instead, Obama unveiled climate regulations through the Environmental Protection Agency (EPA) — regulations which the Trump administration now intends to eliminate.
Last month's global average concentration of atmospheric carbon dioxide (CO2) was about 409 parts per million (ppm). https://t.co/qjYgQZI1Al
— NASA Climate (@NASAClimate) October 16, 2018
And critically, the Obama government didn't deny nor question the realities of human-caused climate change.
"Its argument was not climate denial — it was 'let us do things our way,'" said Siegal.
It remains unclear how soon the Supreme Court will make up its mind on whether to let the trial resume or not.
"They're the masters of their own calendar, shall we say," said Gregory.
The high court stopped the trial on October 19. Then, Gregory and his co-counsels provided a required response, quite detailed at 103-pages long, a few days later.
"We’re hopeful they'll make a decision promptly to allow these young plaintiffs to proceed with the trial," said Gregory.
Record low sea ice extent continues on the Atlantic side of the #Arctic Ocean. This region has been well below average over the last several months. Daily data on the chart is from the @NSIDC. pic.twitter.com/nD1tGpHmPX
— Zack Labe (@ZLabe) October 26, 2018
Siegal, like the plaintiffs, is also eager for the trial to get underway.
She notes the recent special report released by the United Nations' Intergovernmental Panel on Climate Change (IPCC) — the global agency tasked with providing objective analyses of the societal impacts of climate change.
The report states in no uncertain terms that modern civilization needs to promptly transition to clean energy to fend off the worst consequences of climate change, which include the melting of Earth's great ice sheets, drought, imperiled crops, and unprecedented heat.
"We’re all in a bus speeding towards a cliff and the administration is driving," said Siegal.
"And the Trump administration is flooring it."