Why Is the Biden DOJ Blocking a Landmark Youth Climate Suit?

California For The Win

Montana Kids Just Won Their Landmark Climate Lawsuit. Here’s Why. 

Why Climate Litigation Matters

We called this show Damages because fossil fuels have been causing a lot of damage. At UN climate negotiations, the conversation around damages is called loss and damage. But after nearly 30 years, these negotiations have yet to achieve their ultimate goal, deterring polluters from causing more irreversible damage.
And if we continue to believe that those who pause it shall get away without payment. At all times. It is only a matter of time before they to become victims of their own negligent behavior. Even if we are to S upfront, this was the Prime Minister of Barbados, Mia Motley speaking at the UN Conference on Trade and Development in 2019.
Motley is part of a long line of leaders of island states that have been asking who will pay for the damage caused by climate change for more than 30 years. Back in 1991, when Vanuatu first brought up compensation at UN climate talks, there was still time to stop the climate crisis from causing the kinds of extreme harm we're now seeing become more common.
But even as the worst fears expressed by countries like Vanuatu have come true, Discussions around who should pay have been going backwards. So much so, that in 2012, after 20 years of negotiations, rich countries managed to get words like compensation and liability almost completely erased from UN climate talks altogether.
Instead, governments now use the term loss and damage, and even those words are considered controversial. Yeah, despite nearly three decades of delay, countries like Vanuatu are far from giving up. After the last UN climate conference, a group of countries led by Vanuatu decided to turn to the International Court of Justice.
And they have a growing body of evidence to support their claim, including from the Intergovernmental Panel on Climate Change, or IPCC, which has now acknowledged that climate change is also connected to the economic inequality caused by colonialism. Thirty years after negotiations begun, many of these countries are already experiencing economic costs greater than the size of their annual incomes from climate induced disasters.
For this episode, we dug up footage from fossil fuel industry lobbyists who attended UN climate negotiations and claimed that calls for loss and damage was some kind of shakedown or money grab. But, as Mia Motley explains, the underlying motivation has always been about preventing further damage. The loss and damage funds.
So those responsible for the stock and growth of greenhouse gases, therefore will not only provide the financing, but will provide the kind of change incentives that we need to bring a halt to climate change. Who feels it, knows it? Those who must pay will alter their behavior. That's the story we are looking into this episode.
Welcome back to Damages. I'm Lindell Rolands.
We can take drastic action now to ensure that we prevent a future where super typhoons become a way of life. Back in 2013, Yeb Sarno was representing his home country of the Philippines at the 19th Conference of the Parties of the UN Framework Convention on Climate Change, or COP for short, when a super typhoon destroyed his hometown.
Well, we're going to turn now to the disaster in the Philippines, where officials fear the death toll could hit 10, 000 after one of the strongest storms ever cut a devastating path of destruction across the country. Where we have to ask ourselves, can we ever attain the ultimate objective of the convention, which is to prevent dangerous anthropogenic interference with the climate system.
By failing to meet the objective of the convention, we may have ratified our own doom. And if we have failed to meet the objective of the convention, we have to confront the issue of loss and damage. Loss and damage is a reality today across the world. Sarno made an emotional speech at the meeting, announcing he was going to start a hunger strike until rich countries agreed to help countries like the Philippines prepare for super typhoons and other disasters that are becoming more severe and more frequent with climate change.
Rich countries agreed to create a fund of 100 billion per year by the year 2020 as a starting point. In the years that have followed, rich countries, including the United States, have backtracked and minimized the small commitment they made at the end of COP 19. And they've worked hard to scrub the idea from negotiations as much as possible.
Uh, but rich countries were totally against the terminology of liability and compensation. So a deal was struck that the terminology of
This is Harsheed Singh, an expert on UN loss and damage negotiations, who works for the Climate Action Network. Instead of focusing on compensation, rich countries wanted to focus on global solidarity, sharing technical know how as well as loans to countries that are no longer able to get insurance as disasters become more frequent and severe.
Here's Singh again, explaining how it was the island state of Vanuatu which first brought up compensation at UN climate talks back in 1991. Uh, so Vanuatu on behalf of a small island states group called EOSES. Uh, brought it up in 1991, uh, referring to sea level rise and how it's going to affect people and, and cause irreversible, uh, impacts.
And they called for a compensation mechanism, which was acknowledged as insurance in the convention. The UN Framework Convention on Climate Change or UNFCCC. Was signed by 154 countries at the Rio Earth Summit in 1992, one year after Vanuatu had brought up the question of compensation. The convention aimed to prevent dangerous human interference with the climate system.
Although the Convention did not refer to compensation specifically, it did establish that some countries which were more likely to experience the effects of climate change would need financial assistance. So by the time COP26 in Glasgow happened in December 2021, Vanuatu and other island states had been waiting 30 years for rich countries, which have also contributed by far the most to causing the climate crisis, to make some kind of acknowledgement that polluting governments and corporations should help pay for the damage they've caused.
But people in governments that wanted faster action on climate change weren't alone in trying to influence the outcomes of negotiations. From the very first Earth Summit in 1992, lobbyists from the fossil fuel industry were also making their own case, by employing propaganda techniques, including the classic strategy LLC.
Denying the science. I would now like to introduce Bill O'Keefe, executive director of the American Petroleum Institute and past chairman of the GCC. Bill was in Buenos Aires with us for almost the whole two weeks, or at least about a week and a half, I believe, and has some observations that he would like to give you.
This is Connie Holmes from the Global Climate Coalition, a lobby group that sought to undermine climate action in the 1990s. She's introducing Bill O'Keefe, the executive director of the American Petroleum Institute to journalists at a press conference, soon after they had both stepped off the plane from two weeks of UN climate negotiations at COP number four in Argentina.
Thank you very much, Connie, and they are observations. Uh, I'd like to commend Connie for staying through to the bitter end, and I'll put emphasis on bitter. Uh, my plane left at 10. 30, so I just left in the early afternoon, but Connie stayed. Here, O'Keefe explains how fossil fuel lobbyists stayed at UN climate negotiations until what he calls the bitter end.
O'Keefe went on to falsely deny the scientific basis for UN climate negotiations, before telling journalists that increased CO2 could even have potential benefits. There is no scientific consensus contrary to what people assert. There is emerging science that we've ignored the benefits of increased CO2.
Other speakers at the press conference echoed O'Keefe's claims. That the jury was still out on the science, even though at the time we know that even the fossil fuel industry's own scientists had been telling them differently for several years. So by 92, we already have, they already got a template. They already got an organization.
They've got their rhetoric down. They've got the organization down. You know, the importance of the GCC is really pretty immense because it just, it really gave a, a field test. To their strategy to delay climate action. Environmental sociologist Robert Bruhl has just published the first peer reviewed paper on the Global Climate Coalition, or GCC.
It was originally organized by the National Association of Manufacturers and included trade groups and corporate representatives from every industry that stood to lose profits if emissions were regulated. Bruhl notes that in addition to casting doubt on climate science, the group hammered home two key points, economics and sovereignty.
Play up the economics, play up the economics, play up the threat to the American way of life, and then talk about international inequality, talk about energy security, talk about anything international that we can use to, you know, throw at this, at this thing. Akif, for example, describes countries asking for financial assistance to respond to climate change as While I was there, the image that was created in my mind is the movie Jerry Maguire.
And you can decide who Tom Cruise is and who Cuba Gooding was, but clearly a lot of the discussion was about, show me the money. So right out of the playbook, Brewer lays out in his new paper. There's a theory and practice of climate obstruction, and these guys are the masters of the practice because they've been doing it for 33 years.
So far they're 33 and 0. They've won 33 years in a row. At the time, the projected costs of climate change were not yet as high as they are now. It was all about transfer of wealth. It was interesting, there was very little discussion of the science, and I've concluded, uh, that that is with good reason because in the past year, The science has turned against this protocol.
O'Keefe's claims that developing countries were using climate negotiations as a way to transfer wealth not only ignored the costs of climate change to developing countries. But also erase the close links between the fossil fuel industry and colonialism that have seen the mass transfer of wealth in the opposite direction.
You know, it's clear that colonialism and the fossil fuel era reconfigured the world economy. This is Harpreet Paul. She's a human rights lawyer and a member of the Make Polluters Pay coalition. The Indian subcontinents share of the global economy shrank from 27 to 3% between 1,719 50, and it's estimated that the, at the same time, the UK benefited by approximately 45 trillion US dollars from its colonial rule of the Indian subcontinent alone.
And there are similar stories to be told. of colonial endeavours in the Americas, um, in the African continent and beyond. As Paul explains, the economic costs of climate change are only the latest in a long history of economic extraction and transfer of wealth away from developing countries and Indigenous peoples.
And the economic costs of loss and damage is predicted to reach between 290 and 580 billion US dollars by 2030, and that the upper end, that would equal more than the combined GDP of the world's 80 poorest countries. And it's not just island states. The recent deadly heatwaves in India and Pakistan are just one more example of what climate damages look like.
The loss and damage fund that rich countries agreed to create was meant to begin with 100 billion a year. But so far, a lot of the money has come in the form of loans that add to the debts countries are already incurring from climate induced disasters. The Jubilee Debt Campaign has described the situation as a climate debt trap.
Here's Prime Minister of Barbados, Mia Motley, again. The bottom line is, to build back, we have to borrow, and when we borrow, it is added to our debt to GDP, and when our debt to GDP rises, our credit rate drops, and then we are unable to meet. the basic fundamental demands that normal development requires of us.
There has to be a recognition of being able to isolate that debt which is necessary to build resilience or to build back from a climate disaster as opposed to the normal aspects of development. Instead, as Hajit Singh explains, polluters continue to receive incentives in the They are getting subsidies to the tune of 11 million a minute, 11 million a minute, uh, and yet they're not being held accountable, uh, and they're using these public resources and further causing the problem.
Far from developing countries being the ones that are rent seeking, Paul points out that climate change is part of a much bigger picture of colonialism. And of course that has a long history of, um, following a colonial pattern of extracting and exploiting local communities, um, and leaving them in very, very precarious context, um, less able to withstand shocks, whether they're economic shocks or, um, political or climate, to be able to respond in the same way.
Hi, my name is Aisha Siddiqa, I'm an environmentalist, storyteller, advocate for human rights, and I work with polluters out. Together with other youth climate activists, Siddiqa has been campaigning to stop including fossil fuel companies in UN climate negotiations. There were over 500, uh, fossil fuel industry delegates at the conference, and that's more than any country alone.
Like, no country had over 500 delegates. As Siddiqa describes, the climate crisis is the extension of a long history of colonization. For all the exploitation that has happened in your land, for all the stealing and pillaging that has happened by the hands of white people, they have now not only looted from you, they're killing themselves in the process as well.
Even as the devastating impacts of climate change have spread to countries like Australia and the United States, fossil fuel lobbyists have continued to call for more delays. Whereas back in 1998 at that GCC press conference, speakers suggested that we wait and see how things are in 2020. At more recent COPs, the focus has shifted to the vague commitments of net zero by 2050.
After COP26 in Glasgow again failed to deliver any progress on loss and damage, almost 10 years after Yebsano's hunger strike, Vanuatu and other island states decided to escalate their case with a plan to go to the International Court of Justice. If you look at small island states who have approached the International Court of Justice, that clearly shows the kind of frustration and desperation they are going through.
When Vanuatu reaches International Court of Justice to talk about adverse effects, we need to look at how we have failed over the last three decades. Uh, not only in reducing emissions, but also helping countries to prepare for the climate impacts that were inevitable. So it is actually a failure of the range of climate action that we should have seen over the last 30 years.
The next step will be to win a vote at the UN General Assembly. Negotiations at the UN Framework Convention on Climate Change need to have a vote by consensus, which means that all governments, including polluters like Australia and Saudi Arabia, have to say yes before anything happens. At the UN General Assembly, Vanuatu will only need a majority of countries to support its proposal.
Since more than half of the countries at the UN are developing countries, which have long supported the idea that countries that have polluted more should take more responsibility, it's possible, but far from assured, that Vanuatu's proposal will win a majority vote. And as far as the, um, UN and its representatives are, are considered, yes, there's more Global South Nations present than Global North Nations, but there is also a financial power balance.
And even if one vote counts as one vote, that does not necessarily mean that one vote doesn't have more power over. Like the Maldives vote versus the United States. Sadiqa says she and other young people quickly learned about the unequal balance of power at the UN level. We had just organized a 7. 6 million strong march internationally.
And no one at the UN level was willing to talk to us. But this hasn't deterred youth climate activists, who think that more scrutiny of UN climate talks will help reveal the need to remove conflicting interests, including fossil fuel industry delegates. The fact that this IPCC included that social data, the fact that colonialism is now explicitly mentioned, um, turns that whole phenomena on its head.
Climate science, for the longest, was stuck in jargon and that's why the youth movement was able to, like, become so big so fast. We broke down that jargon and we made it accessible to the masses. Way back in 1988, the World Meteorological Organization and the United Nations Environment Program created the Intergovernmental Panel on Climate Change, or IPC as it's often referred to.
IPC reports have formed a basis of evidence that is now often referred to in the growing number of climate litigation cases making their way through courts around the world. And already this year, the IPCC has released two more important new reports. This latest IPCC report is significant for many reasons, but one is because for the first time since 1988, the IPCC has acknowledged the connection between colonialism and climate change.
This is an important development for the IPCC, as Harpreet Paul explains. In the recent IPCC report, where, um, the authors looked at adaptation and losses and damages, it was really clear that marginalization, exposure to colonialism, um, economic disparities, really at the heart of disproportionate exposure to climate change impact.
This recognition in the IPCC report provides further evidence to support the case of countries like Vanuatu, including in their bid to get a majority of countries in the UN General Assembly to vote yes in September 2022. Negotiations on loss and damage will also continue when COP takes place later in 2022.
That was our reporter Lyndall Rowlands. I'm Amy Westervelt. If you listened to our episode on ecocide, you heard that there's a plan to take climate change to the International Criminal Court. Solomon Yeo and the group Pacific Island Students Fighting Climate Change are trying to get the other big international court in the hake, the International Court of Justice, to weigh in on climate change too.
What we're only seeking here is that we can have more clarity on government's obligations to protect the rights of the current and future generation, young people. The purpose of the campaign for an advisory opinion from the International Court of Justice is to get the court to clarify the legal obligations of all countries to prevent and redress the adverse effects of climate change.
Our human rights, even our basic human rights of people around the Pacific, and I believe so elsewhere around the world, are impacted by climate change. Just basic rights such as right to water, right to life, right to food, all these basic rights being discounted heavily. Damages is an original Critical Frequency production.
Our editor and senior producer is Sarah Ventry. Mixing and mastering by Mark Bush. The show is written and reported by me, Amy Westerveld, with additional reporting by Karen Savage, Meg Duff, and Lyndall Rollins. Our fact checker is Wudan Yan. Our First Amendment attorney is James Wheaton of the First Amendment.
project. Our theme song this season is Bird in the Hand by Fournone. Artwork is by Matthew Fleming. The show is supported in part by a generous grant from the Feil Foundation. If you'd like to support our work, please rate or review the podcast wherever you're listening and share it with friends. Thanks for listening and we'll see you next time.

Welcome back to Damages. I'm Amy Westervelt. Today, an update on a big climate case that's been ongoing for about seven years now. It's probably the best known of all of the climate cases. The Juliana case, or officially Juliana versus the United States. In this case, 21 young plaintiffs sued the U. S.

government over climate change. It's often been misreported that they sued the government for inaction on climate, but that's not actually. what they said. In fact, the plaintiffs sued the government for effectively enabling and accelerating climate change via policies that support and encourage more and more fossil fuel extraction.

So fossil fuel subsidies or highway bills that make the country dependent on cars, anything that basically encourages more emissions. That's not just me being all, well actually, although, okay, fine, I do like to do that sometimes. It is actually a really important distinction. Here's Julia Olson, the lead attorney on the case, to explain.

So the case is about the government's affirmative acts that have Put these young people in a position of danger and continue to act in ways that are enhancing the danger for young people. As a lawyer, I'm looking at the party most responsible for causing the harm. And I'm also looking at the remedy that's available to really stop the climate emergency from worsening and to begin to redress it so that we can protect.

These fundamental life support resources for these young people. And when I look at the party, most responsible, it is the United States government historically and presently, because as The government's creation of, promotion of, support of a national fossil fuel energy system. There's actually a Netflix documentary about the case that was just released this week.

Here's a quick trailer. For a lot of young people right now, life is really scary because we've never seen a moment like this in history. And our feelings about our life and our future is all because of choices that we had no. participation in. And so the plaintiffs joined this case because we all know who's to blame and what needs to be done.

Some lawyers, especially those going up against the oil companies themselves, have criticized the Giuliana case for being too broad or for taking the spotlight off of the fossil fuel industry. But Olson doesn't See the two as mutually exclusive and having covered the climate crisis for more than 20 years now, I kind of tend to agree.

It seems to me like there's plenty of accountability to go around. The Juliana case was originally filed in 2015 and in 2021 it. It looked like it was dead in the water. Back in 2020, the Ninth Circuit Court of Appeals ruled that the plaintiffs didn't have standing to bring this case. So the plaintiffs asked for what's called an en banc rehearing.

That's a request that a full panel of judges, so in this case, 11 judges, look at a case, not just the three who happened to review it the first time. They asked for that in 2020, and in early 2021, the Ninth Circuit said, Nope, we're not going to re hear it. Our decision is our decision. So a lot of folks thought this case was done for.

But the Ninth Circuit issued a mandate to send the case back to district court in Oregon. So now it's back in front of Judge Aiken and at that point we decided that the best path forward and sort of the most efficient past path forward to get to a ruling in the case and to get to trial was to amend the complaint.

It has come back, and Julia Olson is going to walk us through how that happened, where it's at today, and what we're waiting to hear about next. That's coming up right after this quick break.

Okay, so back in 2021, Olson and her team filed an amended complaint, and the Juliana case got a second life. So we amended our complaint, and we changed the request for relief. At the end, we took out the specific request for the court to order a plan, be prepared on fixing the climate crisis and And we really refocused our request for relief on what's called declaratory judgment.

So asking the court in the first place to just declare the constitutional rights and say whether the government has violated those constitutional rights of these young people. And so the request for relief focuses on that. It does also ask the court to award plaintiffs any other relief that the court fines is appropriate or necessary after a trial is held and all the evidence comes out.

Um, so we, we did that and then we added new factual allegations to the body of the complaint and we connected the dots better to say, hey, you know, one big part of the injury here is that the U. S. government is saying to young people, That they don't have constitutional rights. They are saying that it's totally within the law for them to continue to promote fossil fuel energy, that that's okay to do.

And so there's a real controversy there. And if the court resolves that controversy in favor of these young people and says that that conduct is unconstitutional. you know, that the fossil fuel energy policies and practices of the United States government are unconstitutional, then that changes this whole legal relationship between these young people and their government.

And then the government can't keep saying, oh, we can keep promoting fossil fuels. We can permit all of this. We can lease public lands for fossil fuel extraction. That's totally within our right. They will be wrong at that point. And then things will really begin to change. And so we, we said in the complaint that if the court Issues that declaration of constitutional law that the federal government will abide by it and they will begin to change the way our energy system is run in our country.

That actually feels like a pretty huge deal, especially as we've been watching the Biden administration struggle to change any policies at all with respect to climate and fossil fuels. One of the first things the District Court Judge in Oregon, who's overseeing this case, Judge Aiken, did was to order Olson and her team to have a settlement conference with the U.

Department of Justice to see if they could work out a settlement agreement instead of taking this case back to court. June 23rd was our first settlement conference, and June 25th was the oral argument on the motion to amend. So we've had one settlement conference, and what happens... in those conversations has to be kept confidential.

It's the way settlement negotiations work. It frees the parties. To talk freely with the settlement judge and to not disclose that conversation publicly, so I can't talk about the content. That was Julia Olson talking to me back in July when the team had just had one settlement conference and gone through oral arguments on this new amended complaint.

The reason I wanted to talk to her back then, kind of in the middle of all of this process, was that something really strange happened as that first settlement conference was getting underway. The Attorney General of Alabama, joined by a Republican Attorneys General from 16 other states, filed a motion to intervene in this case.

And that means we gotta talk about Raga. The Republican Attorneys General Association. Raga was started back in the 1990s as a reaction to the tobacco litigation. That litigation had been started mostly by Democratic attorneys general, and Republicans took a look at the legal landscape in the country and realized that they were vastly outnumbered by Democrats in state attorneys general offices.

That was something that was going to need to change if they were going to avoid state Dates going after an industry ever again. So the attorneys General of Alabama, Texas, and South Carolina came together and created Raga, and then they set about getting Republican attorneys general elected.

I had looked at this back when I was working on the Senate Judiciary Committee in terms of this. The rise of RAGA, the Republican Attorneys General Association, where we know that it's a pay to play operation. Lisa Graves ran the Center for Media and Democracy for years and now runs the research firm True North.

She's been tracking RAGA since its inception. We know that it's, it's, uh, it has had enormously distorting effect on U. S. law. Um, it provides a mechanism for corporations to pass money through to help, uh, attorneys general, uh, in ways that they would not be able to individually solicit for their own campaigns, given their role, their regulatory role over those very industries.

Um, and that's been going on since Raga was created back, uh, more than 20 years ago now. Raga now is, um, not just a recipient of donations from big oil and, and, uh, big huge corporations, but it's also a major recipient of funds in, in which the source is completely unknown to anyone other than the person raising the money.

The agenda of the people who fund the RAGA, the Republican Attorney General's Association, and have been, um, really attempting to work a legal revolution through offices that we would otherwise consider to be independent. It would be nice to have attorneys general of states who, um, were not. so captive to advancing the interests of Charles Koch.

Um, but unfortunately we are in an era in which those interests have been dominating. They successfully took the lead over Democrats several years ago and transitioned to phase two, coordinating on amicus briefs and constitutional cases. You definitely know their work, even if you've never heard of Raga before today.

Now for an opposing view, we're joined by Ted Cruz. He is the solicitor general for the state of Texas, and he drafted the amicus brief signed by attorneys general of 31 states who say the DC handgun ban should be struck down. More than a hundred house Republicans on Thursday signed onto an amicus brief in support of the Texas lawsuit aimed at overturning the election results in four swing states.

Georgia, Michigan, Pennsylvania, and Wisconsin. So yeah, the same group that's been mobilizing against gun control and abortion for years and that tried to get the 2020 election results overturned, all of a sudden showed up in the Giuliana case six years after the case was filed.

Now, normally when someone files a motion to intervene in a case, they're effectively joining that case as a co defendant or a co plaintiff. But in this case, the Republican AGs don't want to be co defendants with the U. S. government. They only wanted to intervene in certain parts of the proceedings.

Here's Julia Olson again. They have a political agenda to, you know, protect gun rights, to put limits on voting rights, uh, 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 Giuliana case, and they have decided that this case has a real shot at winning, I think, and, and really establishing the constitutional law around the extensive harm being caused by this crisis and by energy policies.

Um, so I think they realized that, oh, this case is going somewhere. And as a result of that, they asked the district court if they could come in and intervene for limited purposes. And so this intervention motion that they filed, it's really bizarre because typically when you have intervenors, people who want to come into a case, they either want to come in as a plaintiff, or they want to come in as a defendant, and they want to participate in a case as a full party.

And these Attorney Generals from these 18 states, they aren't asking to come in as a party. They want to come in as sort of an interlocutor to just blow things up. They said very explicitly they want to come and have a seat at the settlement table in order to prevent any settlement from happening. Keep in mind, this motion was filed in June 2021.

So the Biden administration was just getting going, and it maybe wasn't clear yet what his Department of Justice was going to look like. These attorneys general had no reason to intervene when it was a Trump DOJ dealing with the Giuliana case, but now they weren't so sure. And they did not want the government settling with these attorneys and effectively creating a constitutional right to a livable planet in the U.

According to Julia Olson, they needn't have worried. I actually think the DOJ is not very different at all. And, uh, in talking to lawyers in a lot of other cases, um, people aren't seeing a shift in, in the DOJ under the Biden administration and under the leadership of Merrick Garland. I, I think they're still taking a lot of the same positions they have taken.

And I actually think there's sort of a, a Dangerous, um, backlash happening from what went on during the Trump administration in terms of there was a lot of concern that the president at the time Trump was using the Department of Justice to achieve his personal. needs, you know, that they, the attorney general bar was acting as his private attorney kind of, you know, that was a lot of the public perception and the concern of Congress and that DOJ was not on the up and up.

And so, you know, president Biden has said, we're going to have clear rules and the department of justice will have prosecutorial discretion. And I'm not going to tell them who to prosecute, right? That's their decision. as the people's lawyer. And, and that all makes sense. But when the Department of Justice is defending clients, like different agencies that have been sued by people, then there is a really important role for the executive branch that the political officials and the agencies and the White House to play in how they want to be defended in those cases.

Right. So as an attorney, you have an obligation to confer with your client and make recommendations. But at the end of the day, if your client wants to settle or if your client wants to admit facts or your client wants to take a particular legal position, the clients make that decision, not attorneys by themselves.

And so I think the Department of Justice is kind of overreacting or overcorrecting. what happened previously. And, and 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. Ultimately, it was a moot point.

Judge Aiken still hasn't ruled on whether or not the Raga attorneys can intervene, nor has she ruled on the amended complaint. And in the meantime, the settlement conferences have ended with no settlement. I spoke with Olson again this week to get an update. You know, we have filed, um, some notices of supplemental authority.

There have been some Supreme Court cases that we think are favorable to the mission to amend. So, you know, when something arises, some new precedent that binds her, we It's not her way, but otherwise, we are just waiting on her decision on that mission to amend, which could come any day now. And we also, for about five months, um, starting in probably July, we were working with magistrate where former magistrate judge Tom Coffin as our settlement judge.

And engaging in settlement talks with the Department of Justice, and those, um, became no, you know, we're not fruitful. And so we ended those talks, I think in October. Wasn't part of the Republican Attorney General's request was like to be in on those talks? Yeah, yeah, they wanted, they wanted to be able to have a seat at the settlement table.

And. You know, that question had not been decided, but there was, you know, no need for them to have a seat at that settlement table. The Biden DOJ is, is continuing to do its job to fight this case. And, um, at this point, you know, has not shown any... Non alignment with the position of the Trump administration, or for that matter, or the red states, so.

Mm hmm. That's interesting, because it did seem like that might have been part of the motivation for the, the Republican attorneys general, right, was that they thought, oh, a Biden DOJ is going to settle with them, and, and that might be bad, but they needn't have worried. They needn't have worried. Now, Olson and her team are just waiting on a decision from Judge Aiken about whether she's going to accept this amended complaint and whether she'll allow the RAGA attorneys to intervene.

In addition to wanting to be part of those settlement conferences, the Republican attorneys wanted to be able to weigh in on the amended complaint. Everyone is eagerly awaiting a ruling from Judge Aiken, which could come any day now. All right. was hopeful that we would have had it before the end of 2021.

Um, and I also know that she has a very full docket has obviously been impacted by COVID. So, um, so we are waiting and hopefully she's cleared things out and Juliana will be next up. Yeah. And I don't know, Amy, if you've seen the projections that the projections from the EIA are showing. you know, continued increases in our oil and gas production and in our emissions.

And of course, I think 2021 was like, what a 6% increase in emissions again. Um, so we're, we're headed in the exact opposite direction we need to, which is why we need to get back to court and get to trial. In the meantime, several other youth climate cases have been filed all over the world, including a few by Olson and her team, most recently in Mexico and Canada.

Olson's happy to see it, but is also concerned about a new and troubling trend she's seeing. Cases pushing for governments to adhere to the goals of the Paris Climate Agreement. So limiting warming to between 1. 5 and 2 degrees. But Olson points out that those targets were a political compromise. They're not what science indicates is actually safe.

You know, courts, for the most part, judges aren't going to independently read climate science. And so they're going to rely on counsel. to bring them the evidence, right? And when the evidence is coming in and they're saying, you know, you gotta go with the Paris Agreement numbers, then judges are doing that and so there are actually cases now and there's precedent building around the world that to protect human rights, um, in whatever iteration The claims are brought, but what are, where that human rights law is in a particular country, whether it's in an international treaty or in a constitution or codified in some other place, they are linking it now to those 1.

5 and 2 degree C numbers. Just, which is catastrophic for humanity and for young people. And, you know, it's my experience that most lawyers and even a lot of journalists don't understand that The foundational science is about Earth's energy imbalance, right? So as long as we have an energy imbalance, the planet's going to keep heating.

Right. And this is like fundamental science that climate, that scientists have understood for a hundred years or more. Yeah. And, and there's this just phenomenal group of interdisciplinary scientists working together to continually define what that energy imbalance number is. And what level of CO2 in the atmosphere would correct that energy imbalance?

Like, what do we have to get back to? And they continue to come up with the number 350. We have to get below 350 parts per million. Yeah. You know, when I ask her or any scientist the question, like, What do you think 1. 5 is? Is safe. Like, do you think we can stay at these levels? And they're all like, no, it's, it's totally dangerous and catastrophic.

That sets a precedent not only for cases like Olson's, but for policy too. If courts start to codify those targets, suddenly it becomes harder and harder to push for policies that align with science and human rights rather than politics.

That's it for this time. Go check out Youth V Gov on Netflix if you want more background on this case and this story. We'll be back next week with an episode on what the UN can actually do about climate change. So come back for that. Transcribed by https: otter. ai

Damages is an original critical frequency production, mixing and mastering by Mark Bush. The show is written and reported by me, Amy Westerveld, with additional reporting by Karen Savage, Meg Duff, and Lyndall Rollins. Our fact checker is Wudan Yan. Our first amendment attorney is James Wheaton of the First Amendment Project.

Our theme song this season is Bird in the Hand by Fournone. Artwork is by Matthew Fleming. The show is supported in part by a generous grant from the Feil Foundation. If you'd like to support our work, please rate or review the podcast wherever you're listening and share it with friends. Thanks for listening, and we'll see you next time.

S2, Ep3 Transcription

Juliana v United States was one of the first big youth climate cases, and it 
has inspired several others. In 2021, it looked like the case was dead 
in the water, but it's back now with one more shot... and a new Netflix 
documentary on the case too! (Check out Youth v Gov here: 

The Real Free Speech Threat

S2, Ep4 | What Can the UN Actually Do About Climate?