The U.S. government is trying again to stop a high-profile climate change lawsuit days before young activists are set to argue at trial that the government has violated their constitutional rights through policies that have caused a dangerous climate.
Justice Department lawyers on Thursday asked the U.S. Supreme Court to dismiss the case, saying the suit attempts to redirect federal environmental policies through the courts rather than through the political process. That court in July denied the government’s previous request to dismiss the case, calling it “premature.”
A group of 21 young activists, now between 11 and 22 years old and who live in Seattle and across the country, sued in federal court in Oregon in 2015. They have said their generation bears the brunt of climate change and that the U.S. government has an obligation to protect natural resources for present and future generations.
They say U.S. government officials have known for more than 50 years that carbon pollution from fossil fuels was causing climate change and that government policies on fossil fuels deprive them of life, liberty, and property without due process. They also say the government has failed to protect natural resources as a “public trust” for future generations.
The lawsuit seeks a court order for the government to stop permitting and authorizing fossil fuels, quickly phase out carbon dioxide emissions and develop a national climate recovery plan.
The U.S. government, under the Obama and Trump administrations, has tried unsuccessfully for years to get the case dismissed.
Last week, the Trump administration also asked 9th U.S. Circuit Court of Appeals to dismiss the case. That court rejected a similar request in July.
“The latest attempt to get the U.S. Supreme Court to stop the trial does not appear to be based on any new evidence or arguments. The only new element is an additional Supreme Court justice,” said Melissa Scanlan, a professor at Vermont Law School, who is not involved in the case. She was referring to the confirmation of Brett Kavanaugh earlier this month, who replaced the more moderate Anthony Kennedy.
Prof. Scanlan added that the Trump administration is trying to avoid “what they’re expecting to be a 50-day trial focused on climate disruption,” she added.
Barring intervention from a higher court, the trial is scheduled to begin Oct. 29 in federal court in Eugene, Ore. It is expected to last eight to 12 weeks, wrapping up in January.
Julia Olson, one of the lawyers representing the young plaintiffs and chief legal counsel for Our Children’s Trust, said the court should “hear the evidence in this fundamental rights case.”
“We are ready to bring all of the facts forward and prove these youths’ case once and for all,” she said in a statement.
In court filings, the federal government argues the plaintiffs don’t have the standing to bring the case, that the issues should be left to the political branches of government and not the court and the public trust doctrine doesn’t apply in the case.
Jeffrey Wood, acting assistant attorney general for the department’s environment and natural resources division, said they “firmly believe there is no legal basis for this case to be heard in federal court.”
The lawsuit “is an unconstitutional attempt to use a single court to control the entire nation’s energy and climate policy,” he said, according to prepared remarks for a speech he gave Friday at a conference in San Diego. “It is a matter of separation of powers and preserving the opportunity in our system of government for those policies to be decided by the elected branches, not the courts.”
The lawsuit is part of a nationwide effort led by the Oregon-based non-profit Our Children’s Trust to force states and the U.S. federal government to take action on climate change.
James Hansen, a former top NASA scientist who told Congress and the world 30 years ago that global warming had arrived, is also a plaintiff in the federal case.
On Monday, District Court Judge Ann Aiken denied the government’s motion for summary judgment and dismissed President Donald Trump as a defendant in the case.
She rejected arguments the plaintiffs don’t have standing to bring the case, noting they made specific allegations of “personal injuries caused by human-induced climate change,” including extreme weather events in 2016 and 2017 that led to flooding in Louisiana.
Prof. Scanlan said the plaintiffs will need to show that the government created a danger, that they knew they created that danger and they “with deliberative indifference” failed to prevent harm.