The climate change lawsuit the Trump administration is desperate to stop going to trial

Young people aged between nine and 20 claim the federal government has promoted fossil fuel production, worsening climate change and therefore violating their constitutional right to life, liberty and property

The case could challenge Donald Trump's scepticism about climate change (Getty)

A groundbreaking climate lawsuit, brought against the federal government by 21 children, has been hailed by environmentalists as a bold new strategy to press for climate action in the United States. But the Trump administration, which has pledged to undo Barack Obama’s climate regulations, is doing its best to make sure the case doesn’t get far.

The Trump administration this week filed a motion to overturn a ruling by a federal judge back in November that cleared the lawsuit for trial – and filed a separate motion to delay trial preparation until that appeal is considered.

The lawsuit – the first of its kind – argues the federal government has violated the constitutional right of the 21 plaintiffs to a healthy climate system.

Environmental groups say the case – if it’s successful – could force even a reluctant government to reduce greenhouse gas emissions and take other measures to counter warming.

“It would be huge,” said Pat Gallagher, legal director at the Sierra Club, who is not involved in the case. “It would upend climate litigation, climate law, as we know it.

The landmark lawsuit was originally filed during the Obama administration. The 21 plaintiffs, now between the ages of 9 and 20, claim the federal government has consistently engaged in activity that promotes fossil fuel production and greenhouse gas emissions, thereby worsening climate change. They argue this violates their constitutional right to life, liberty and property, as well the public trust doctrine, while holds that the government is responsible for the preservation of certain vital resources – in this case, a healthy climate system – for public use.

While legal experts are uncertain as to the lawsuit’s likelihood of success, few have disputed its pioneering nature. Similar cases have been brought on the state level, but this is the first against the federal government in the United States. And in November, the case cleared a major early hurdle when U.S. District Judge Ann Aiken denied motions filed by the Obama administration, as well as the fossil fuel industry, to have the lawsuit dismissed, ordering that it should proceed to trial.

The move allowed the case to join the ranks of climate lawsuits filed in other nations, which could upend the way environmental advocacy is conducted around the world. Just last year, a court in the Netherlands ordered the Dutch government to cut carbon emissions by a quarter within five years. Similar climate-related suits have been brought and won in Austria, Pakistan and South Africa.

Shortly after President Trump’s inauguration, the plaintiffs submitted a request that the Department of Justice preserve all documents that could be relevant to the lawsuit, including information on climate change, energy and emissions, and cease any destruction of such documents that may otherwise occur during the presidential transition. The request came just days after reports began to surface of climate information disappearing from White House and certain federal agency websites.

“We are concerned with the new administration’s immediate maneuver to remove important climate change information from the public domain and, based on recent media reports, we are concerned about how deep the scrubbing effort will go,”Julia Olson, chief legal counsel for the plaintiffs and executive director of the advocacy group Our Children’s Trust, said in a statement at the time. “Destroying evidence is illegal and we just put these new U.S. Defendants and the Industry Defendants on notice that they are barred from doing so.”

The Trump administration is combating this request in its motion to stay litigation, along with its motion to appeal. The administration charges that the United States could be “irreparably harmed” if the case’s proceedings are not halted pending consideration of its appeal, claiming that “the extraordinary scope of this litigation and the concomitant scope of discovery that Plaintiffs appear to be seeking set this case apart.”

“One of the things that the government argues is that the preservation of documents itself represents a burden on the government,” said Michael Burger, executive director of the Sabin Center for Climate Change Law at Columbia Law School. “What they’re arguing is that they’ll be irreparably injured by having to go through discovery here.”

This, he added, “sends kind of the wrong signal, or at least a very dangerous signal, in terms of what the government’s priorities are or what it’s thinking of doing. It shouldn’t be any kind of burden for the government to preserve documents that are already in existence.”

But given the broad implications of the case for US climate action, especially if the plaintiffs prevail, “it’s not surprising that the Trump administration would want to quash it,” said Gallagher, the Sierra Club legal director.

If the case were successful, the federal government would be obligated to take meaningful action against climate change, probably through a planned reduction in greenhouse gas emissions. This type of order would run counter to the current administration’s priorities. On Thursday, Scott Pruitt, the EPA chief, rejected the underlying science of climate change, and the administration has indicated its intent to cancel a number of Obama-era climate and environmental regulations, including the Clean Power Plan, and withdraw from the Paris climate agreement.

Whether either of the federal government’s most recent motions will hold up remains to be decided. According to Burger, this largely depends on Aiken, the federal judge who ordered that the case proceed to trial, who essentially must sign off in order for the appeal to take place.

“In order to do that, the judge needs to basically agree that there are issues of law that could be determinative that the case would be better served if the Ninth Circuit [Court of Appeals] heard it now,” Burger said. Appeals most typically occur after a final opinion on a case has been reached through trial, he noted, pointing out that although it’s “common enough for parties to seek interlocutory appeal, it’s the exception rather than the rule that it be granted.”

A stay of the proceedings, pending appeal, is also subject to Aiken’s decision. This means there are multiple combinations of outcomes that could occur for the case’s proceedings.

“It’s conceivable that Judge Aiken could certify her order on the motion to dismiss for interlocutory appeal and not grant a stay on the proceedings,” Burger noted. In this situation, the case would be heard in the Ninth Circuit Court of Appeals, which would essentially decide whether it should proceed on the basis of the claims the plaintiffs have already set forth, while at the same time continuing through discovery at the district court level, he said.

Regardless of the final outcome, legal experts have highlighted the lawsuit’s importance as a novel approach to the climate issue in the United States. “It could spawn a whole new universe of litigation at both the state and the federal levels,” Gallagher said.

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