It is October 30, 2018, do you know where the children in the case of Juliana v. US aren’t? They aren’t in the second day of what had been billed as the “environmental case of the century.” In a last-ditch effort to halt the suit, the Trump administration appealed to the US Supreme Court (SCOTUS) to stop the case before it got to trial.
The Juliana plaintiffs have endeavored over the past three years to establish a constitutional right to a habitable environment and to place the nation’s national resources like land, water, and forests into a public trust under the trusteeship of the federal government. If successful, the case would force the Trump administration to craft and implement a Clean Power Plan (CPP) on steroids and potentially preventing it from giving away the Grand-Staircase-Escalante, Bears Ears and other federal lands and landmarks or opening them up to commercial exploitation.
The October appeal was the second time the Administration asked the High Court to stay the trial. An earlier—essentially similar—request was denied. What happened between the July 30th denial and the October 19th stay was the addition of Brett Kavanaugh to the Supreme Court bench. Kavanaugh filled the seat of retiring Justice Anthony Kennedy. Although a credentialed conservative, Kennedy deviated from his conservative colleagues when it came to the environment.
Had it not been for Justice Kennedy Massachusetts vs. EPA would not have set the stage for the Clean Power Plan and other of President Obama’s legacy climate preserving actions—most of which is being unwound by Trump and company. Massachusetts established EPA’s authority—nee obligation—to regulate greenhouse gases (GHGs) under the Clean Air Act (CAA) once it determined they endanger the health and welfare of the nation.
Chief Justice Robert’s stay of the case before trial is generally considered by legal experts as an extraordinary step. Although the same extraordinary step was taken to stay the CPP.
In its initial refusal to stay the case SCOTUS agreed with the Ninth Circuit Court of Appeals rejections of two earlier motions by the government. The appellate court’s rulings were based on procedural matters rather than on the merits of the plaintiffs’ claims. Both courts had indicated the government would have ample opportunities to contest the substance of the allegations and requested redress during and after the trial.
Although unwilling to stop the trial, Justice Kennedy wrote words of warning in his July order allowing the case to go forward:
The justiciability of those claims presents substantial grounds for difference of opinion. The District Court should take these concerns into account in assessing the burdens of discovery and trial, as well as the desirability of a prompt ruling on the Government’s pending dispositive motions.
Administration lawyers based their last requested motion mainly on the grounds of the constitutional separation of powers:
Absent a stay; the government will be forced to proceed with a 50-day trial that is fundamentally inconsistent with Article III and the separation of powers under the Constitution. Plaintiffs’ efforts to require the defendant agencies to develop and implement a comprehensive, government-wide energy policy outside of the congressionally-prescribed statutory framework runs roughshod over fundamental separation of powers principles.
In essence, the government is saying it would be a waste of time to go through a trial because the court doesn’t have the power to redress the harms being done to the plaintiffs. The claim entails several issues. Before a plaintiff can pursue their case in court, they must meet standing requirements. A court will only hear cases and controversies by plaintiffs who have suffered an actual injury or harm, traceable to the actions of the defendant, and capable of redress by the court.
The Administration is claiming that the requested relief, i.e., a comprehensive, government-wide energy policy, is a political question that can only be answered by the legislative and executive branches of government. The separation of powers question is found across a wide variety of climate-related lawsuits.
As I’ve reported before, the “political question” has taken center stage in the common law nuisance (torts) cases in which states and local jurisdictions are suing major oil companies for the damages caused by burning fossil fuels. The judge (Alsup) in City of Oakland v. BP P.L.C agreed with the plaintiff jurisdictions that climate change is an immediate and alarming problem largely the result of human activity. He even went so far as to order a briefing on climate change by the litigants. Notwithstanding the agreement of both plaintiffs and defendants that climate change is not the hoax some would have people believe, Judge Alsup dismissed the case as a political matter and not for the court to decide. (see here for more information.)
The Juliana attorneys filed their response to Roberts’ order just days after he stayed the trial and halted further discovery, e.g., deposition and expert reports. In their answer counsels highlighted the youths’ claimed infringement of their fundamental rights not to be deprived of their personal security and family autonomy – rights already recognized by this Court under the liberty prong of the Due Process Clause. (emphasis added)
The question is: what will Chief Justice Roberts do now? It is possible that after reviewing Juliana’s response to the issues raised by Administration attorneys, he will lift the stay. Possible—perhaps--but I think unlikely. If the stay is not lifted, Roberts will refer the matter to the full Court for decision.
A stay is a serious matter—more the exception than the rule. The Court grants a stay when four criteria are met:
1. There is a “reasonable probability” that four Justices will grant certiorari, or agree to review the merits of the case;
2. There is a “fair prospect” that a majority of the Court will conclude upon review that the decision on the merits was erroneous;
3. The case going forward will result in irreparable harm; and,
4. In close cases, the Circuit Justice may find it appropriate to balance the equities, by exploring the relative harms to the applicant and respondent, as well as the interests of the public at large.
The long-and-short of it in my estimation is that Chief Justice Roberts stayed the case because he thinks there are four Justices who want to review the case on its merits. Does this guarantee that Justice Roberts and the four other conservative justices will uphold the stay or decide against the Juliana plaintiffs on the merits? Let’s just say it doesn’t bode well for the 21 plaintiffs.
Justices Thomas, Gorsuch, Kavanaugh, and Alito are likely to agree with the Administration’s assertion that the case is a political question that can only be answered only by Congress and the president. As textualists, they will look to the Constitution for any literal references to the right to a livable environment. Finding none, they will rule in favor of dismissal. Although the Chief Justice is counted as a conservative, it is at least a matter of speculation that he will replace Kennedy as the swing vote on the court.
Roberts cast the deciding vote to uphold the Affordable Care Act and is accused by political conservatives as soft on gay rights and abortion. Roberts has also been quoted stressing the importance of maintaining the legitimacy of the Court by avoiding 5-4 decisions on party lines. Undoubtedly Roberts’ recognition of how SCOTUS is viewed by all in society—populists and progressives alike—played into the decision of the Juliana attorneys to reference this in their answer to the government’s arguments in support of dismissal.
From the response brief submitted on behalf of the Juliana plaintiffs--
“The independence of the judiciary, free from pressure by the political branches, is instrumental in preserving our democratic institutions and the People’s respect for them. At times in our history, our federal courts have faced constitutional questions with broad implications for our Nation. As Supreme Court Chief Justice Roberts recently stated in a talk at the University of Minnesota School of Law:”
Without [judicial] independence, there is no Brown v. Board of Education. Without independence, there is no West Virginia v. Barnette, where the Court held that the government could not compel schoolchildren to salute the flag, and without independence there is no steel seizure case [Youngstown Sheet & Tube Company v. Sawyer], where the court held that President Truman was subject to the Constitution, even in a time of war.
Now, the Court has from time to time erred and erred greatly. But when it has, it has been because the Court yielded to political pressure, as in the Korematsu case, shamefully upholding the internment during World War II of Japanese American citizens.
The critical nature of the Chief Justice’s concern about how the US Supreme Court is viewed by all citizens cannot be overstated. At a time when hyper-partisanship taints everything from Congress’ efforts to enact legislation to the President’s expression of dismay and condolence to the families of victims gunned down in a Pittsburgh synagogue, the stability of the nation could well depend upon the High Court’s being viewed as above the political fray.
Whatever the Supreme Court decides in the case of 21 young plaintiffs seeking to protect themselves and the nation from the worst ravages of Earth’s warming climate, they and their attorneys have created a record in which the Trump administration has admitted the truth about the causes and harms of global climate change.
At the beginning of this article, I asked readers if they knew where the Juliana plaintiffs aren’t. Let me say now where they are. Undaunted they are taking to the streets and organizing rallies and events in support of America’s cause to combat global warming. In the final analysis, guaranteeing current and future generations, a habitable environment is a fight for children of all ages. I encourage readers to join with and support the Juliana plaintiffs as they seek victories in the courts of law and public opinion.
Readers can get involved by going to Youth v. Gov at https://www.facebook.com/youthvgov/
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.