In late December, a federal district court judge in Oregon issued a ruling that put a landmark youth constitutional climate lawsuit against the federal government firmly back on path towards trial. “The judiciary is capable and duty-bound to provide redress for the irreparable harm government fossil fuel production has caused,” US District Judge Ann Aiken wrote in her December 29, 2023 opinion denying the government’s latest bid to toss out the 2015 Juliana v. United States case. The Juliana case contends that by promoting and perpetuating a fossil fuel-based energy system despite full awareness of the catastrophic and irreversible climate consequences, the US federal government has threatened the very ability of youth and future generations to live fully healthy, safe and prosperous lives, denying them the basic rights to “life, liberty and the pursuit of happiness” that every American citizen is supposedly guaranteed. James Gustave Speth, an environmental advocate and expert witness in the Juliana case, documents this pattern of government conduct in his book They Knew, calling it “the greatest dereliction of civic responsibility in the history of the Republic.”
Now, it appears questionable whether the 21 young plaintiffs in Juliana, which has been making its way through the courts for 9 years now, will ever get their day in court—despite the current administration’s claims that it is working for climate action. “At every turn the government has fought like heck against these young people,” said James May, an environmental law professor at Widener University Delaware Law School.
Since the Juliana lawsuit was first filed in 2015, the federal government has seemed hell bent on stopping it in its tracks. The US Department of Justice (DOJ) has filed more than a dozen requests to pause proceedings and half a dozen extraordinarily rare emergency petitions. Earlier this month the DOJ submitted yet another mandamus petition to the Ninth Circuit Court, its seventh overall, which legal experts say is unheard of in American civil litigation.
“I was a federal public interest litigator for a quarter of a century. I don’t know of anything else ever like it,” May said.
According to the Oregon-based nonprofit law firm Our Children’s Trust, which represents youth in multiple constitutional climate lawsuits against governments, the US government’s conduct in Juliana amounts to “political persecution” of their young clients. In a recent filing with the district court, attorneys with Our Children’s Trust say that in the 40,000+ cases in which the DOJ is defending the government, Juliana is the only one where government lawyers are resorting to such extreme tactics. “These brave youth are the equivalent of citizen whistleblowers on the government’s fossil fuel energy system, and the evidence of its conduct the government seeks to hide from the public,” the youths’ attorneys write, “and they are being targeted unlike any other group of plaintiffs in any case in U.S. history as a result.”
“People should be outraged at what their government is doing,” Andrea Rodgers, senior litigation attorney with Our Children’s Trust, told me by phone. “Going to these kinds of lengths to silence children, I mean it’s just preposterous.”
The government’s many attempts to quash the case (which was supposed to go to trial in 2018) during the Trump administration are perhaps unsurprising. Those tactics saw some success when a Ninth Circuit panel decided to dismiss the suit in a divided 2-1 opinion in January 2020. Undeterred, the Juliana plaintiffs and their legal team pressed on, asking permission from Judge Aiken to file a revised and narrower version of their complaint, a request she granted in 2023. But if they were expecting an easier time with a Democratic administration, the Juliana lawyers were soon disabused of any such belief. With the case reactivated, the government promptly tried to get the case dismissed once again. They were joined by 18 Republican attorneys general, who attempted to join the case as “interlocutors.” When that many Republican attorneys general join together, it’s a clear indication that a case has become a project for the Republican Attorneys General Association (RAGA), which works both to elect more Republican attorneys general and to bring those in office together on important constitutional cases.
“They have a political agenda to protect gun rights, to put limits on voting rates, to stop women from having access to, uh, choices about their, their health and, and childbearing and abortion. And they also have a climate agenda. And on their climate agenda is the Juliana case,” Julia Olson, founder, co-executive director and chief legal counsel for Our Children’s Trust, told Drilled at the time. “And they have decided that this case has a real shot at winning, I think, and really establishing the constitutional law around the extensive harm being caused by this crisis and by energy policies.”
Olson said the Biden DOJ has so far been entirely aligned with the Republican attorneys general. “In many cases, the policies of the Biden administration are not aligning with what the department of justice is doing in cases that have a huge bearing on those policies,” she said. “The Biden Administration is continuing to fight this case and at this point has not shown any non-alignment with the Trump administration or the red states for that matter.”
Aiken rejected the DOJ’s bid to dismiss the case in December, and the Biden DOJ is now resuming the same aggressive tactics used by the Trump administration to prevent a trial. Its latest petition to the Ninth Circuit could be a make-or-break moment for Juliana. That court could opt to end the case once and for all by clarifying that it meant for the case to be dismissed in its entirety when it ruled in 2020, which is what the DOJ is arguing. If the Ninth Circuit declines the government’s petition, the US Supreme Court could potentially quash it at the government’s invitation. Otherwise, Juliana would finally go to trial at the district court in Oregon as Aiken has ordered.
The Juliana case was the first constitutional climate case of its kind filed in the U.S. What ultimately happens with this groundbreaking climate litigation against the federal government could have profound implications and consequences for climate, accountability and democracy, positive or negative depending on the outcome. As Bill McKibben has said, Juliana is a “breakthrough case that could help America finally do what it needs to do to face up to the great existential crisis that is climate change.” If there is a trial, the US government could very well be held accountable for systemic policies and actions that worsen the climate emergency, from long-standing fossil fuel subsidies to the government’s role in incentivizing car-dependent transportation, permitting oil and gas infrastructure such as pipelines and export terminals, and authorizing fossil fuel production on public lands.
Based on the evidence presented at trial, the district court could declare that the government’s support of fossil fuels contributes to dangerous climate change, and therefore amount to violations of plaintiffs’ fundamental rights under the US Constitution. Such a declaration could compel the federal government to reassess its policies and practices and make meaningful changes. Even if the declaration is struck down on appeal—a distinct possibility if the case gets to the Supreme Court—the trial could potentially still bring about accountability through the court of public opinion. By telling a clear and compelling story backed by scientific evidence that the government is knowingly endangering young people, the trial could spur the public to demand a course change in the government’s handling of the climate crisis.
The trial could provide the Biden administration a chance to defend its climate record, and to explain how it is addressing climate change—what Biden himself repeatedly calls the “existential threat” of our time. The president has kept some of his climate promises: this administration passed the largest clean energy investment in history with the Inflation Reduction Act, and, most recently, paused LNG export approvals. In his statement on the LNG pause, Biden called out MAGA Republicans “condemning the American people to a dangerous future” and said his administration “will heed the calls of young people” demanding climate action. If Biden means what he says, then why is his administration resorting to the same playbook that the Trump DOJ used to try to prevent the Juliana plaintiffs (and their expert witnesses) from being heard at a trial?
As Our Children’s Trust argues in their recent filing, “It would be a colossal failure of democracy, the rule of law, and the third branch of government if [this] case never goes to trial.” In addition to setting a dangerous precedent of the Executive branch interfering in the judicial branch’s business, if it continues with its crusade to end this case, the Biden administration may see political consequences and backlash—especially from the young people his campaign is counting on to show up and vote in November.
“[The youth plaintiffs] just want to be heard, and the Joseph R. Biden administration wants to deny them that,” May said. “It’s a missed opportunity politically I believe for the Biden administration.”
“I don’t see the trial as either a waste of time, or necessarily bad for the Biden administration,” said Patrick Parenteau, emeritus professor of law and senior fellow for climate policy at Vermont Law and Graduate School. “Denying these young people their day in court will have worse political consequences.”
Potential political consequences aside, the Biden DOJ resuming the Trump DOJ’s extreme legal tactics in fighting this litigation could have important implications for the rule of law. If the government gets its way and the case never gets to trial, it arguably would mean that the US courts are abdicating their duty to review the conduct of the political branches alleged to be unconstitutional. The implication is that, when it comes to the existential threat of climate change at a systemic level, the political branches—in this case the executive branch—are beyond judicial scrutiny.
“The Biden administration and Merrick Garland announced their narrative in addressing what’s referred to as an insurrection on January 6 that no one is above the law. Yet here in this case, brought in federal court with a federal court judge finding that the claims are constitutionally cognizable, meaning properly pled, the Biden administration would prefer not to be subject to the law,” May explained. “It goes back to this whole idea of the rule of law that the Biden administration has trumpeted as the lynchpin of democracy, and accountability, and political integrity, yet when it’s a decision that goes in the direction that makes the administration uncomfortable, all bets are off.”
Some legal scholars say the Juliana v. US climate case has always been a stretch given the “sweeping” nature of the claims. The case challenges not one particular federal agency or piece of legislation but the federal government’s climate policies and decisions regarding the fossil fuel energy system writ large. Named defendants in Juliana include the United States and the Office of the U.S. President, plus an array of executive branch offices and agencies and Cabinet heads. While these individual officials, now in the Biden administration, differ from those in the original 2015 complaint, the allegations remain largely the same. “The new complaint continues to challenge the federal government’s aggregate actions that make up the nation’s fossil fuel energy system and contribute to climate change,” Rodgers explained. The Biden administration’s approval of the Willow oil drilling project in Alaska is just one example of a decision, among many others, that make up the aggregate acts that the case challenges, she said.
Despite its broad scope, at the end of the day, the case alleges violations of individual rights under the Constitution. The only remedy plaintiffs now seek is for a court to declare that those rights existed, they are indeed protected by the Constitution, and the federal government has violated these fundamental rights of young people through its role in worsening the climate emergency.
As Judge Aiken wrote in her December opinion, “At its heart, this lawsuit asks the Court to determine whether defendants have violated plaintiffs’ constitutional rights. That question is squarely within the purview of the judiciary.” She also notes: “Over the course of American history, courts have corrected longstanding, systemic wrongs of political branches that encroach on the fundamental rights of citizens.”
Beyond what the Juliana lawsuit’s fate may portend for politics and the rule of law in the US, it ultimately comes down to whether or not climate science will at last get to see the light of day in open court. The science is crystal clear that avoiding utter climate calamity requires rapidly phasing out fossil fuels. Yet this is not happening—especially not in the United States. The US, already the world’s largest historical carbon emitter, is on course to generate the most carbon pollution out of any country from planned oil and gas expansion through 2050. When it comes to federal energy decisions on fossil fuels, the government’s policies simply do not square with climate science, even with climate-friendly politicians in charge. Oil production under Biden has reached record levels and his administration’s approvals of oil and gas drilling on public lands are on par with those under Trump.
The DOJ is “afraid of what will happen when these young people and experts talk about fossil fuels and climate change in open court, and when the government is put under oath. The truth will come out that the U.S. Government has given the fossil fuel companies a license to harm,” Olson said in a press release.
A trial in the Juliana case would expose the U.S.’s climate double-speak. As Olson suggests, this could be why government lawyers are going to such extreme lengths to try to avoid a trial at all costs. Just look at what happened with the historic climate trial in Montana last summer, which saw climate scientists testify in support of the youth plaintiffs. The state government defendants had no substantive defense to counter the robust science. Bringing climate science as evidence into the courts is powerful.
The ball is now in the Ninth Circuit’s court, as it will either direct the plaintiffs to respond to the government’s petition - or it will simply deny the petition. Rodgers said they expect to hear from the Ninth Circuit in the coming weeks.
It remains to be seen whether the Juliana plaintiffs and their expert witnesses will ever get a chance to be heard at trial. “It’s been so painfully clear that if a powerful interest doesn’t want something to proceed, they
have a litany of ways to stop it,” plaintiff Nathaniel Baring wrote in a recent declaration filed with the district court. “In this case, we are up against our own Department of Justice and the executive branch of our federal government trying to keep us out of court.”
Despite the government’s relentless attempts at obstruction, Our Children’s Trust says that the young people they represent are not backing down.
“[The government] wants them silenced,” Rodgers said. “It is our goal to do everything in our power to get these young people their day in court.”
