We have reported several times on the groundbreaking lawsuit filed by 21 children and young adults in conjunction with Our Children’s Trust in 2015. They are suing the federal government, claiming it has violated its obligations to them contained in the US constitution. A long established legal doctrine says the government holds certain parts of the country such rivers and shorelines in trust for its citizens.
The lawsuit builds on that public trust doctrine and attempts to extend it to the atmosphere. Because such a claim has never been recognized by US courts previously, the government — first under the Obama administration and now under the Trump administration — has vigorously opposed the notion that any such obligation exists in US law. But until now, the government’s attempts to have the suit dismissed have been rebuffed by the courts.
Last year, federal judge Ann Aiken denied a motion to dismiss filed by the government and set a trial date of February 8. But before that date arrived, the administration took the extraordinary step of asking the Ninth Circuit Court of Appeals to overturn Judge Aiken’s refusal to dismiss the case.
This is a good time to give you a short course on legal proceedings. In the normal course of things, a case must be finally resolved before an appeals court will get involved. Otherwise, appellate courts would be meddling in the business of the lower courts constantly. This case had not even gone to trial, never mind reached the point of a final decision. Circuit courts of appeal are composed of a dozen or more judges. Normally, a three judge panel hears appeals from the trial courts.
In this case, that is exactly what happened. Three judges of the Ninth Circuit listened to the government’s appeal and ruled unanimously that it was premature. Since the trial hadn’t even been held yet, how could the case possibly have reached a final decision that could be reviewed on appeal? They refused to interfere with the trial court, which may now proceed to schedule a trial date.
The government’s primary complaint is that matters of “energy and environmental policy” should not be decided by the courts but by the elected branches of the government, namely Congress and the President. In the Constitution, the three branches of government are “co-equal,” meaning none is more important than another. Judges are extremely jealous of their prerogatives and tend to get testy when someone tries to tell them what they can and cannot do. The judges of the Ninth Circuit, in so many words, told the administration to piss off.
As reported by Think Progress, Julia Olson, co-counsel for the young plaintiffs, said in a statement after the ruling was handed down, “The Ninth Circuit just gave us the green light for trial. We will ask the District Court for a trial date in 2018 where we will put the federal government’s dangerous energy system and climate policies on trial for infringing the constitutional rights of young people.”
The administration has two arrows left in its quiver, however. It can ask the entire Ninth Circuit to reconsider the decision of the three judge panel. Or it can request the US Supreme Court to intervene. Both are extraordinary strategies with little likelihood of success. But with the current right wing cabal in control of the Supreme Court — which raced to block the Obama Clean Power Plan last year — anything is possible.
“The question of the last few years has not been ‘do we have a case’ but rather ‘how far will the federal government go to prevent justice’,” says Kiran Oommen, a 21-year-old plaintiff in the case. “We have seen that they are willing to go to many lengths to cover up their crimes and maintain the status quo, but not even the Trump administration can go far enough to escape the inevitable tide of social progress.”
Oommen may be ready for Medicare by the time this law suit is concluded. The discovery phase of the trial, which begins now since the Ninth Circuit has refused to intervene, could involve millions of documents, e-mails, memorandums, and transcripts of phone calls. No doubt, the defendants will try to run to the Ninth Circuit every time a ruling goes against them at the trial court level.
When all is said and done, the Supreme Court could snap its fingers and undo all the years of litigation by simply agreeing that this is a question for Congress and the executive branch, not the courts. In other words, there is a long way to go yet. But as the Chinese proverb says, “A journey of a 1000 miles begins with but a single step.”