Constitution Daily

Smart conversation from the National Constitution Center

Climate change trial now faces long delay

November 21, 2018 by Lyle Denniston


Seeming to suggest that higher courts have left no other choice, a federal trial judge in Eugene, Ore., ordered a months-long delay of the trial of a children’s constitutional lawsuit claiming future harm from climate change, especially global warming.  That trial was to have started more than three weeks ago, but now will occur – if it occurs at all – no earlier than next year.

U.S. District Judge Ann L. Aiken, in a new ruling, also gave the Trump Administration permission to file a pre-trial appeal that will test some of the most significant rulings the judge had already made in planning for the trial.  One of those rulings was that the children who filed the lawsuit have a constitutional right to sue to try to compel the government to follow policies that would provide for them a climate capable of sustaining human life.

The Administration has already made clear that it will use that appeal opportunity to try to get higher courts to dismiss outright the climate change lawsuit that has been pending in Judge Aiken’s court for more than three years but had not yet gone to trial.   If either a federal appeals court or the Supreme Court were to order the case dismissed, that would be the end of it unless lawyers for the children were prepared to sharply pare down the legal claims they have been making so far.

The ultimate aim of the lawsuit, if the children were to prevail in the end, would be to have the courts order a nationwide plan by a variety of government agencies to adopt policies for reducing the use of fossil fuels to generate energy, in order to reduce the emission of “greenhouse gases” that heat up the atmosphere, perhaps leading to global warming and to catastrophic weather events like hurricanes and wildfires.

Judge Aiken had previously refused to give the government permission to file a pre-trial appeal to test the validity of the lawsuit, but she changed her mind on Wednesday.  She implied that she was yielding to sentiments that higher courts had made suggesting that they were skeptical of the wide sweep of the claims being made in the case.  The Supreme Court, for example, had remarked about the “striking” breadth of the children’s claims.

While both the Supreme Court and the U.S. Court of Appeals for the Ninth Circuit have issued temporary delays of the Eugene trial in response to pleas by the Trump Administration, neither of those courts had ruled that the case had to be ended without a trial.  That, of course, will be a central issue as the Trump Administration appeal proceeds in the coming weeks.

In a recent session with lawyers involved in the case, Judge Aiken had said that with all of the delays resulting from the Administration’s challenge to the lawsuit, she now could not plan to start the trial before January or February at the earliest.  But the Administration’s appeal now is certain to go on longer than that, especially if that appeal ultimately reached the Supreme Court.  It is doubtful that the case could complete its path through the Supreme Court during the current term, which is expected to run until late next June.

The Administration has argued that the children should not be allowed to pursue their lawsuit, because they cannot prove that they personally have been harmed as a direct result of a specific government agency’s action.  If the case proceeded at all, government lawyers have contended, it could only do so by targeting specific actions by specific agencies, and only after those actions had been completed.

The children’s lawyers have countered that, because their basic claim is based directly on the Constitution, it need only pose a challenge to the sweep of many government policies, going back decades, that have fostered reliance on fossil fuels for much of the nation’s energy supply.

Lyle Denniston has been writing about the Supreme Court since 1958.  His work has appeared here since mid-2011.  


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