Trump team makes final plea to end climate case

“It could well be years into the future,” a new Administration filing argued, “before the government could appeal…to seek relief from such an egregious abuse of the civil litigation process and violation of the separation of powers.”

The document was the final one expected before the Justices make up their minds whether to step into the deep controversy stirred up by the case of Juliana v. U.S., the wide-ranging lawsuit by 21 children and youths seeking to force the government to end a long list of policies that foster the use of carbon-emitting fossil fuels for much of the nation’s energy.

With trial of the case scheduled to begin next Monday in a federal courtroom in Eugene, Ore., the first task for the Justices is to decide whether to postpone the opening of those proceedings while they decide what to do next about the Administration’s multi-faceted attack on the lawsuit.  (The start of the trial is temporarily on hold under an order last week by Chief Justice John G. Roberts, Jr., but that hold will last only until the Justices act further on the delay request.)

Beyond the postponement issue, the Administration wants the Court to choose one of two options, both of which could lead to the result that the government actually wants: a decision to dismiss the case altogether, without a trial.  One option – the most direct – would be an explicit command by the Justices to U.S. District Court Ann L. Aiken to dismiss the case as beyond the powers of a court.  A second option would be review by the Justices of Judge Aiken’s rejection of the Administration’s various arguments for ending the case promptly.

Either option would involve weeks and probably months of proceedings in the Supreme Court, with the ultimate decision on the fate of the case unlikely to emerge before late spring.  If the Justices do decide this week to postpone the trial and agree to ponder a ruling along the lines sought by the Administration, that would only keep the matter in limbo until the broader challenge by the government were decided.

Lawyers for those who filed the sweeping lawsuit, in a brief submitted to the Court on Monday, had tried to persuade the Justices that the lawsuit is not nearly as ambitious or as intrusive into government policymaking as the Administration has argued.

But the reply brief filed Wednesday by Administration lawyers sought to counter that filing, contending that the burdens of the lawsuit on the government “only grow more severe” as the lawyers for those suing lay out their plans.  Just last week, the federal reply brief said, the other side indicated it would call 68 witnesses and offer nearly 2,000 exhibits.

Calling the lawsuit “deeply misguided’ as well as a “radical…invasion” by a court of the policymaking powers of the federal government agencies in charge of energy and environmental policy, the new federal brief argued that “there is no telling how long it would take for the district court to complete the opening phase of the trial, determine the scope of [government] liability, and then conduct the unprecedented” second proceeding on what remedy to impose on government agencies.

Judge Aiken has split up the case into a trial on whether the government is to blame legally for harms done by policies that may have increased emissions of greenhouse gases, resulting in global warming, and then, if the government is found to be at fault, a second trial to work out a remedy.

The new filing pointed to a pre-trial legal brief that lawyers for the children and youth had just filed on their plans for what they would seek if the case does reach the remedy phase.  That brief, the government lawyers said, indicates that the ultimate goal to be sought is “to decarbonize the U.S. energy system.”

The plan, the filing added, “reads more like the agenda for a joint hearing by a number of congressional committees than a proceeding to award relief in a case or controversy that the Constitution authorizes a federal court to entertain.”

A new order by the Chief Justice or, more likely, by the full Court could come at any time.