Ruling that a group of teenagers is entitled to a court test of their claim that their constitutional right to a safe environment has been violated by years of federal government neglect, a federal trial judge in Oregon moved on Monday to start that trial in just two weeks.
Unless the Trump Administration persuades a higher court to step in, and it is almost certainly going to attempt that, U.S. District Judge Ann Aiken plans to get started on that case in her Eugene courtroom on October 29. She rejected an Administration plea to put the case on hold.
While Judge Aiken also refused to give the government permission to file a pre-trial appeal in the case, there are alternative ways that federal attorneys can use to ask higher courts to postpone or even to dismiss the entire case outright. Such efforts, in fact, have been made before in this case – including a plea to the Supreme Court last summer – but so far such challenges have failed.
The case, developing in the Oregon court for more than three years, is based on an entirely new theory: that the Constitution guarantees “a fundamental right to a climate system capable of sustaining human life.”
Judge Aiken had ruled earlier that such a right exists, but she went further on Monday by declaring explicitly that the right can be enforced directly against federal agencies if the youths who sued can prove at a trial that government policy is largely to blame for increases in greenhouse gases that have warmed up the planet and caused disastrous changes in the American climate, including much more severe storms and wildfires.
The judge did say, though, that the youths “must still clear a very high bar to ultimately succeed,” because they will have to show not only that government officials have known for decades about the hazards of climate change, but also that officials pursued policies that showed deliberate indifference to those hazards. Still, she said, they had offered enough proof up to now for their case to survive the government plea to end it without a trial.
The lawsuit filed by youths between ages eight and 19 relies on a variety of specific provisions in the Constitution, including “due process” and promises of legal equality, underlying the sweeping claim to a constitutional guarantee of a livable environment.
In the 62-page opinion issued Monday, Judge Aiken ruled in favor of one of the Trump team’s challenges – its argument that the Ninth Amendment can’t be a basis for the youths’ claims. She refused to allow trial on that. That amendment is the most open-ended provisions of the Constitution; it says that some rights not explicitly mentioned in the Constitution may exist anyway. “That claim is not viable as a matter of law,” the judge wrote.
She also refused to treat young people as having a special right, because of their youth, to be protected against policies that may be harmful to their future as they grow up. They argue that climate change will worsen over time under existing policy, so they need special safeguards. Judge Aiken said she was not “persuaded to break new ground in this area.”
The judge also dismissed President Trump as a specific target of the lawsuit. However, she did not bar the youths’ attorneys from renewing a challenge to the President later in the case, depending upon how the evidence develops. She said it was not settled that a court lacked the power to issue orders directly to command the President to do or not do something found to be unconstitutional.
But in refusing to block the trial on other claims behind the safe environment theory, the judge specified that she will require the government to meet the strictest constitutional test – “strict scrutiny” – when it tries to disprove the argument that it has followed for years an energy policy that is deliberately indifferent to the harms being done.
The judge, at several points in the opinion, made it clear that she intends to be quite cautious in drafting remedies if the youths ultimately prove their claims at the trial. She noted that she was aware that the Supreme Court, when it refused last July to intrude in the case, had remarked tellingly that the youths’ legal claims were of “striking breadth” about which there would be differences of opinion, and had told her to take those concerns into account.
A fully developed record, achieved only by a full-scale trial, will enable her to craft possible remedies that do not run real risks of violating the constitutional separation of powers between the courts and the policymaking branches of the government. But she also strenuously defended the courts’ power to decide such a potentially momentous constitutional controversy.
The Trump legal team, in telegraphing its intention to move quickly once the judge had ruled on its motion to end the case without a trial, had asked the judge to issue an order allowing a swift pre-trial appeal. In doing so, it relied expressly upon the language of the Supreme Court’s July order, arguing that it was a signal to the judge to permit a quick appeal. Judge Aiken said she did not interpret the Court’s order as taking away her discretion to refuse to authorize a pre-trial appeal, and she refused to allow that specific tactic.
The Trump legal team’s next move could be to ask either the U.S. Court of Appeals for the Ninth Circuit or the Supreme Court itself, to issue an explicit order – technically, a “mandamus” – to try to stop the trial or to end the case altogether right now. That is a rare legal option, but the government lawyers have already attempted it several times in this very case.
Because the trial is set to open in only two weeks, there is a strong chance that the Trump Administration would rush to the Supreme Court, bypassing the Ninth Circuit Court level. It would take the votes of five of the nine Justices to issue an order against the trial schedule or against the youths’ case itself.
Any plea to the Supreme Court would start with a single Justice. Who that would be is not clear at the moment. Chief Justice John G. Roberts, Jr., has been temporarily handling emergency legal filings from the Ninth Circuit, which includes Oregon in its geographic area. But the newest Justice, Brett M. Kavanaugh, has not yet been assigned a circuit for such duties, and he could take on the Ninth Circuit because that was the one overseen by his predecessor, now-retired Justice Anthony M. Kennedy.
Whoever received an initial government filing almost certainly would pass it along for action by the full Court, because of the importance of the issues at stake.
(The case is titled Juliana v. United States.)
Lyle Denniston has been writing about the Supreme Court since 1958. His work has appeared here since mid-2011.
