Mitchell A. Chester, Our Children’s Trust
Shortly after noon on Jan. 20, the Biden administration will become the third administration to serve as named defendants in the historic youth-led constitutional climate change case, Juliana v. United States, which has an en banc petition pending in the Ninth Circuit Court of Appeals.
The newly inaugurated administration and members of the President’s Cabinet will automatically be joined as defendants in the suit as the Trump term ends.
Juliana was filed in 2015 by 21 young people. The litigation alleges that the federal government’s affirmative actions cause and contribute to the climate crisis and violate the youths’ constitutional rights to life, liberty, and property.
Their position is realistic and clear: the plaintiffs seek a climate system capable of sustaining human life and liberty, and state that, without changing course, constitutional rights are being stripped from them.
This case was scheduled for trial in a U.S. District Court in 2018 but has been attacked and delayed by the Trump administration’s Department of Justice. Even before the full case could be presented with peer-reviewed scientific evidence and expert testimony, Julianawent through the appellate process, up to the United States Supreme Court’s shadow docket.
But federal lawyers used procedural tactics to have the case dismissed before the judicial system — and the public — could hear the facts and decide the merits of the case.
Meanwhile, government actions and tons of destructive greenhouse gases are threatening the economic and social systems of our fragile planet. We have lost four years of opportunity and innovation when we could have been addressing these dangers.
Jan. 20 is a prime date to correct course.
Now, the Biden administration has a chance to establish and support its climate agenda by addressing the merits of the case. It can ask the Ninth Circuit to permit timely settlement discussions between the young plaintiffs and the government.
That means real communication, in a sincere effort to resolve the issues between all parties. Such an initiative could avoid years of protracted litigation and fulfill the Biden administration’s promises to protect the climate for future generations.
Instead of fighting the youth, the Biden-Harris White House and the new Attorney General have a powerful opportunity to directly communicate with the plaintiffs and their counsel. All parties need to work together toward urgently needed climate solutions that protect the constitutional rights of young Americans across the nation.
The Juliana youth seek resolution of their case based on technically and economically feasible tools and strategies to abate our escalating climate emergency. Their input, and those of the experts who would testify, are crucial to the development of sound climate policy.
In January 2020, a Ninth Circuit panel recognized in a 2-1 decision the gravity of the claims and the government’s role in causing climate damage, and made it clear the government is violating federal constitutional rights. Nevertheless, two of the three appellate judges “reluctantly” concluded that the plaintiffs’ requested remedies should be addressed by the executive and legislative branches, instead of the judicial system.
When the Ninth Circuit panel decided to dismiss Juliana, the most powerful dissent seen in years was written by Judge Josephine L. Staton. She warned, “Seeking to quash this suit, the government bluntly insists that it has the absolute and unreviewable power to destroy the Nation.” The plaintiffs have now filed a petition for review en banc seeking the full Ninth Circuit’s review of the case.
The position taken by the outgoing administration is simply indefensible. For the incoming administration, immediately re-activating membership in the Paris Agreement is but one small step in the right direction. Another is to try to resolve Juliana.
After inauguration day, continued defense of Juliana, without communication and a sincere effort to settle, would contradict political promises of climate action and negate encouraging administration appointments.
Ignoring Juliana and neglecting the Biden-Harris administration’s opportunity as a new litigant would realize the fears of Judge Staton and endorse the dangerous trajectory of the past.
Judge Staton’s dissent points out that “No case can singlehandedly prevent the catastrophic effects of climate change predicted by the government and scientists.” Correct. It takes a joint effort, between the government and all generations, including the Juliana team, to prevent destruction.
President-Elect Biden and Vice-President-Elect Harris: Let us start talking and enshrine science-based climate protection as a fundamental constitutional right for all generations by properly resolving Juliana v. United States. We can work together with all deliberate speed.
Mitchell A. Chester, Esq., is a Florida member of the litigation team of Our Children’s Trust.
“The Invading Sea” is the opinion arm of the Florida Climate Reporting Network, a collaborative of news organizations across the state focusing on the threats posed by the warming climate.
