Last year, I argued that an effort by young climate activists in Oregon to compel the federal government to reduce carbon emissions was well-intentioned but doomed. I didn’t anticipate that this effort would be doomed so quickly:
A landmark climate change lawsuit, brought against the federal government by 21 children, has encountered yet another hurdle on its way to trial. A higher court has just stepped in and ordered a temporary stay on the proceedings while it considers an unusual petition from the Trump administration that could prevent from the case from moving forward at all.
The petition, filed last month by the Justice Department with the U.S. Court of Appeals for the 9th Circuit, requests a rarely invoked legal procedure known as a writ of mandamus, which allows higher courts to independently review — and potentially overturn — decisions made by lower courts before they have even held a trial. In this case, the petition calls for the appeals court to step in and independently review a decision made by a federal judge last year to allow the climate lawsuit to move to trial. The Trump administration has also requested a stay on the lawsuit’s proceedings until the 9th Circuit makes a decision on its petition.
On Tuesday, the Court of Appeals for the 9th Circuit ordered a temporary stay until it can make a decision on whether to consider the Trump administration’s requests. According to Julia Olson, chief counsel for the plaintiffs and director of advocacy organization Our Children’s Trust, the 9th Circuit has not actually honored any of the Justice Department’s motions yet. The stay, she said, was enacted “on the court’s own initiative,” and the order notes that “the petition for a writ of mandamus and all other pending motions will be addressed by separate order.”
The Justice Department declined to comment on the new development in the case.
It’s quite likely that the supposedly progressive 9th Circuit will contrive a way to kill this lawsuit dead. Keep in mind that the 9th Circuit effectively killed off the similarly themed Kivalina v. ExxonMobil lawsuit in 2012, so don’t be surprised if history repeats itself.
Here’s why this litigation is so misguided: these days, federal courts are conservative–not in the Republican sense, but in the sense of generally being reluctant to challenge the status quo. To rule that the plaintiffs in this case have a Constitutional right to a stable climate–the relief being sought by the young climate activists–is to challenge the status quo bigly, as the 45th President might put it. A federal judge who declares that people have a Constitutional right to a stable climate would declare, in essence, that those who destabilize the climate by burning fossil fuels are acting in an unconstitutional manner. Just imagine the how fossil fuel industry’s media lackeys would demonize such a judge; what Donald Trump did to US District Judge Gonzalo Curiel would be mild compared to the rhetorical assault that would be visited upon such a judge.
No judge wants to be a target of organized hatred. The verbal abuse and threatening invective directed towards the late US District Judge W. Arthur Garrity Jr. over his 1974 ruling desegregating the Boston Public Schools reached such an ugly magnitude that Garrity had to have federal marshals stationed outside of his house until 1978. That was before Fox News, before Breitbart, before the conservative-entertainment complex. What do you think would happen to a federal judge who offended right-wing sensibilities today?
Sadly, the fight for a stable climate will not and cannot be won in American courts. The fight will, and must, be won at the ballot box. This truth may be inconvenient for the plaintiffs in this case, but it’s a truth they–and all of us–will have to face.
