Trump Administration Pressing for Appeal, Dismissal of Climate Lawsuit

The Trump administration is asking an Oregon federal judge in the Our Children’s Trust case to let a higher court review her decision to permit a historic climate change lawsuit to proceed, and to halt the case pending the outcome of that review.

In 2015, a group of 21 young plaintiffs aged 9 to 20 from all over the United States, along with renowned climate scientist James Hansen, who is acting as guardian for future generations, sued the federal government for allegedly violating their constitutional rights via policies that promote global warming.

The suit, filed by the non-profit Our Children’s Trust organization, claims there is a “public trust” obligation by the federal government under the constitution to take necessary measures to protect the climate.  In a November 10, 2016 decision, federal District Court Judge Ann Aiken agreed with the OCT plaintiffs, and ruled they were entitled under the Due Process Clause of the Fifth Amendment to a trial to decide if the government failed in that duty, a startling decision.

In papers filed Monday, in Eugene, Oregon, U.S. Department of Justice attorneys requested permission from Judge Aiken to appeal her decision to the Ninth Circuit Court of Appeals – and also asked that the process be expedited due to “the significance of the issues raised and the burden on Federal Defendants that discovery is likely to impose.”

The government has complained that the climate change suit places an enormous burden on it to retrieve and preserve what could be millions of its internal documents given that Our Children’s Trust has demanded decades of files from multiple executive branch agencies relating broadly to global warming and energy policy.

Our Children’s Trust is also seeking internal records from the powerful oil and gas trade group the American Petroleum Institute, to which major oil companies like ExxonMobil and Shell belong. API has a decades-long record of blocking efforts to cut greenhouse gases, and joined the OCT case as an intervenor, hoping to get the suit thrown out.  Instead, the action proceeded and a federal magistrate has ruled API is now subject to pre-trial discovery of its documents.

In trying to get an appeal prior to a verdict – a process called an interlocutory appeal – the government is reaching for a legal remedy that is supposed to be granted only in fairly rare circumstances – – when a “controlling question” of law is at stake, one over which there’s a substantial difference in opinion by the parties, and where addressing it will hasten the termination of the case.

The government is arguing that OCT’s own assertion that such a fundamental constitutional right – – the right to life itself – could be at issue in the lawsuit is a strong argument for review by a federal appeals court.

If the trial judge agrees and allows the government’s appeal to go forward, it will be up to the Ninth Circuit Court of Appeals to decide whether to actually accept the government’s appeal, and hear from both sides on whether Aiken’s decision to allow the OCT case to proceed to trial was justified.

The appeal of that decision is not unexpected. It comes as President Trump’s team takes command from the Obama administration at the Department of Justice, which is defending the OCT case.  The government’s lawyers raised the possibility of an appeal in a court appearance on February 7th.

It was the Ninth Circuit that killed another pioneering climate lawsuit, Kivalina v. ExxonMobil Corp. et al, in 2012, by upholding a lower court’s decision to dismiss the case.  In Kivalina, a native Alaskan fishing village sued a number of energy companies, fossil fuel producers like Peabody Energy and Shell as well as electric utilities like Southern Company, for their role in causing climatic warming in the Arctic that eroded ice barriers that protected the village from encroachment by the ocean.

The Circuit Court decided that the case was asking the judicial branch to take policy actions that were actually the province of the Environmental Protection Agency, under the authority granted by the federal Clean Air Act.

Posted by Dan Zegart