What Just Happened?
The Trump administration has once again filed a motion to dismiss Juliana v. United States before the trial even begins. Although rebuffed for the second time by the US Supreme Court (SCOTUS) on November 2, 2018, government attorneys thought to go back to the United States Court of Appeals for the Ninth Circuit with the same hackneyed request to deny the youthful plaintiffs in the case their day in court—hoping for a different outcome.
What is it they— whomever they are—say about insanity and doing the same thing over and over again expecting a different outcome? In the case of Juliana, the Administration’s attorneys are not so much insane—as they are fearful of what the case might mean to Trump’s efforts to roll back environmental protections to a time before Nixon and peddle coal to developing nations.
On November 5th Administration lawyers filed their latest emergency dismissal motion. On November 8th the Ninth Circuit Appeals Court again halted the case pending its decision on the motion. In the November 8th order the appellate court “invited” the trial court judge, Ann Aiken, to reconsider her earlier decision denying the government’s request for an interlocutory review. On November 21st the trial court issued an order certifying Juliana for an interlocutory appeal.
Now that the district (trial) court has certified its orders in Juliana, the Ninth Circuit again faces the question of whether the case needs to go to trial. Interlocutory reviews by appellate courts are matters of judicial efficiency in that the level of legal doubt surrounding a plaintiff’s cause of action is so high as to suggest to the trial judge that a case would be a waste of the court’s and litigant’s time and resources. In Juliana’s case, the doubted matter of law is whether the plaintiffs have a constitutional right to a habitable environment.
Such certifications are “exceptions rather than the rule” as they preempt the role of the trial court to hear and decide questions of fact and law. As a first of its kind lawsuit, it is natural for there to be some doubt about the legal/constitutional basis of the plaintiffs’ suit. The Ninth Circuit Court of Appeals and SCOTUS have both recognized the novelty of the youthful plaintiffs’ claims as has the trial court.
Although Judge Aiken certified that a preemptive review of the legal question(s) by the appellate court could now be considered, she took special care in her opinion to reaffirm her earlier belief that justice would be better served after the trial is over when “allow[ing] the reviewing courts to consider the parties’ arguments on appeal with the benefit of a fully developed factual record.”
Judge Aiken pointed out to the upper court that this three-year-old case has proceeded through discovery and dispositive motion practice with only trial remaining to be completed. The lawsuit, initially filed in 2015, has faced and survived a long line of motions by the federal government to deny the youthful plaintiffs their day in court. (See Figure below) Aiken’s order also referenced SCOTUS’ recognition that “[p]ermitting piecemeal appeals would undermine the independence of the district judge[.]”
I’ve written before that Juliana would be the first time climate-science was being called as the central witness in a trial. In this era of hyper-partisanship, the only venue in which climate-science is likely to get a fair and objective hearing is in a court of law. I say this with full knowledge that the Democrats’ victory in the nearly concluded midterm elections will lead to climate hearings in the House within days of the 116th Congress’s being gaveled to order.
Judge Aiken’s order certifying Juliana for interlocutory appeal was issued two days before the Trump administration released the Fourth National Climate Assessment (NCA or Assessment) that states in clear and precise terms--
…a direct connection between the warming atmosphere and the resulting changes that affect Americans’ lives, communities, and livelihoods, now and in the future. It [the Assessment] documents vulnerabilities, risks, and impacts associated with natural climate variability and human-caused climate change across the United States and…concludes that the evidence of human-caused climate change is overwhelming and continues to strengthen, that the impacts of climate change are intensifying across the country, and that climate-related threats to Americans’ physical, social, and economic well-being are rising. These impacts are projected to intensify—but how much they intensify will depend on actions taken to reduce global greenhouse gas emissions and to adapt to the risks from climate change now and in the coming decades
The congressionally-mandated Assessment is the work of 300 scientists and 13 federal agencies.
The conclusions regarding the causes and consequences of global warming contained in the NCA are those the Juliana plaintiffs have alleged in their pleadings and are the basis of their asking the court to order the federal government to act affirmatively to combat the problem. Witnesses to be called in support of the youths’ case will substantiate the Assessment’s findings while giving the government the opportunity to argue substantively against the NCA’s conclusions.
Technically the NCA is the Administration’s official position on climate having involved executive agencies. The White House, however, took immediate steps to distance itself from the report and questioned the reliability of the data used to draw the alarming conclusions.
White House spokeswoman Lindsay Walters was reported saying the Assessment was largely based on the most extreme scenario, which contradicts long-established trends by assuming that...there would be limited technology and innovation, and a rapidly expanding population. She went on to say the next update of the Assessment gives us the opportunity to provide for a more transparent and data-driven process that includes fuller information on the range of potential scenarios and outcomes.
According to a recent warning report of the UN’s Intergovernmental Panel on Climate Change the next time the National Climate Assessment is released—in four years—the world will be only eight years away from catastrophe if it hasn’t made significant progress to end coal-fired electric generation.
It is not surprising that Trump and company have shrugged their collective shoulders at the Assessment’s conclusions and warnings. Trumplicans have had the same reaction to similar allegations by the Juliana plaintiffs, as well as to the growing body of science-based evidence suggesting that global warming is contributing to the historic California wildfires and the increasing devastation wrought by hurricanes. As I will discuss in a moment a new pattern of response to the mainstream scientific community’s increasing alarm over the rate at which Earth’s climate is warming has emerged.
Plaintiffs’ attorneys are cautiously optimistic that the Court of Appeals will act quickly on the matter and allow these young Plaintiffs and the climate science their day in court. It is certain that the entirety of the climate defending community agrees the case deserves a reasoned decision from an independent judiciary, and that can only happen on a full record with rigorous presentation of evidence at trial. The Court of Appeals is under no obligation to act on Judge Aiken’s certification of the government’s chance to appeal on the question of law before the trial begins.
It is unclear at this moment when or how the Ninth Circuit Court of Appeals will render an opinion on Judge Aiken’s order certifying the interlocutory review.
There is, however, more to this story having to do with changes in how the Administration is choosing to frame its position on climate and its approach to the courts.
Trump and many in his administration are softening the tone of their denials of the growing body of scientific evidence on the causes and consequences of climate change. The new Trumplican line recognizes something is happening to Earth’s climate and accepts that human activity may--may—have something to do with it. In recent interviews Trump has discussed his view of the situation:
I don’t necessarily agree with the findings of the [National Climate] assessment.
I can also give you reports where people very much dispute that [climate change]. You do have scientists that very much dispute it.
Man, meaning us people. Man, and women, to be politically correct, because everyone says man but now, we have to add women to that one, too. Man, and women, we do have an impact, I don’t believe the impact is nearly what some say.
I’m not denying climate change. But it could very well go back [to a period of stable temperatures or global cooling.]
Trump’s seeming recognition that mainstream scientists might be on to something is not accompanied by an emerging willingness to do something to combat climate change. Rather, it is the opposite. The magnitude of the problem and the contributions made by others, e.g., China and India, are being used to support the conclusion that any solution is beyond the Administration’s control—so why not just keep on with fossil fuels? The Administration’s “lukewarmness” shows itself in Juliana by its acceptance of the plaintiffs’ allegations—choosing instead to have the case preemptively dismissed as a political matter.
More eerily, Trump’s defense of his reasoning is consistent with his reaction to the assassination of Jamal Khashoggi. In essence what Trump is saying about climate change is: Maybe global warming is real and maybe it's not, in any event doing something about it will negatively impact the nation’s economy. The only option is to ignore it and sell the nation’s fossil fuel resources to other nations.
The Administration’s actions in Juliana are symptomatic of its approach to governance in general and environmental governance in particular. Post the midterms Trump has become more aggressive in his disregard of the law and his efforts to swap out members of his administration he believes disloyal to his person and disrespectful of what it is he thinks he represents.
The first victim of the Trumpian purge was Attorney General Sessions, whom he had his chief of staff fire the day after the midterm elections. Despite Sessions having been one of the most, if not the most, accomplished members of the Cabinet in terms of executing the White House agenda, Trump felt personally betrayed by his recusal in the Mueller investigation. In Sessions’ place, Trump has made a dubiously legal appointment of Matthew Whitaker. Whatever Whitaker’s baggage—which appears to be considerable—Trump has every reason to believe that he will have in Whitaker the attack-dog he had hoped Sessions would be.
Whitaker’s interim appointment is about more than the Mueller investigation. Shortly after the midterms, a US District Court judge in Montana halted the Keystone XL Pipeline for the lack of an environmental impact statement. Trump attacked the judge accusing him of making a disgraceful political decision. Montana federal courts are part of the Ninth Circuit—the same circuit as the Juliana court in Oregon.
Days after the Keystone case a ruling by U.S. District Judge Jon Tigar in San Francisco put the administration's asylum policy on hold. The policy was meant to slow the entrance of migrants into the US—especially the thousands making the trek from Central America over the last several months—by limiting where they could apply for asylum. It was another Ninth Circuit Court opinion.
Once again the decision set Trump tweeting about the Ninth Circuit making the ominous statement "This was an Obama judge. And I'll tell you what, it's not going to happen like this anymore." The remark prompted Chief Justice Roberts to tweet back the day before Thanksgiving:
We do not have Obama judges or Trump judges, Bush judges or Clinton judges. What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them.
Trump answered Roberts’ tweet. "Every case that gets filed in the 9th Circuit, we get beaten. And then we end up having to go to the Supreme Court, like the travel ban, and we won." Trump was referring to a case in 2017 that was overturned in his favor by SCOTUS.
Trump’s exchange with the Chief Justice revealed what has become the White House’s post-midterm strategy for dealing with the courts and cases like Juliana that potentially conflict with presidential plans for running the country. It is a two-pronged attack strategy. The first part is nominating judicial nominees Trump is convinced are loyal partisans and that Senators Grassley (R-IA), McConnell and Graham (R-SC) are willing to push through the confirmation process.
The second front is to run through the appellate courts like the Ninth Circuit to the Supreme Court where Trump is convinced that the now solidly conservative bench will back his plays whatever the laws of United States and despite 240 years of judicial precedents.
Should there be any doubt of how Trump views the High Court and what he expects his Acting Attorney General to do on a regular basis, consider the Department of Justice’s asking the Supreme Court to overturn another Ninth Circuit Appellate Court opinion. The offending opinion struck down the Administration’s restricting military service by transgender people—something which neither “his” generals nor research support.
To implement this second leg of the strategy Trump was in need of an Attorney General loyal to the man and not the office of president. In his new Acting Attorney General Whitaker Trump has a tool to implement the second-leg of the strategy. Whitaker is on record as a climate-science denier and fits in well with Acting EPA Administrator Wheeler, Secretary of the Interior Zinke and Deputy Secretary Bernhardt. Bernhardt is likely to take over from Zinke should he resign because of ethics violations.
Of all his actions, Trump’s attempts to politicize and weaponize the courts in contravention of the constitutional checks and balances that are at the heart of our democracy pose the greatest threat to the nation—greater even than Earth’s warming.
[i] A recent Daily Caller article suggests that Trump’s has become a “lukewarmer.” The tag comes from the book Lukewarming by Pat Michaels.
Lead image: Our Children's Trust
Joel B. Stronberg
Joel Stronberg, Esq., of The JBS Group is a veteran clean energy policy analyst with over 30 years’ experience, based in Washington, DC.