Kids’ climate change suit against Trump administration gets hearing

Appeals court judges skeptical about government’s request to dismiss case

SAN FRANCISCO >> A novel and potentially precedentsetting lawsuit in which 21 young people are suing the Trump administration for failing to address climate change advanced one step closer to a trial Monday.

A three-judge panel of the Ninth Circuit Court of Appeals heard a Trump administration motion aiming to dismiss the lawsuit Monday, with several judges voicing skepticism about the government’s request to shut down the closelywatched lawsuit.

The plaintiffs in the case are a group of budding scientists and climate activists — kids and teenagers from around the country whose ages range from 10 to 21. While critics dismiss the suit as a publicity stunt, backers say many of the young plaintiffs have experienced the brunt of climate change firsthand, from a 13-year-old whose family lost their house in Louisiana flooding to a 16-year-old who worries that her home, the Marshall Islands, will be covered by rising oceans.

“If we don’t stop climate change, I might not have a home when I’m older,” said Levi Draheim, a frizzyhaired 10-year-old who lives on a barrier island in Florida and watched his street flood during Hurricane Irma. “That’s why our case has to go to trial.”

The group of climate change nonprofits that’s funding the federal case has also filed similar lawsuits in all 50 states.

“This is this generation’s Brown vs. Board of Education,” Julia Olson, the lead attorney in the case, told reporters Monday, referencing the landmark 1954 Supreme Court case that outlawed school segregation.

The plaintiffs argue that the government is violating their constitutional rights by allowing fossil fuel development, failing to implement climate change policies, and abdicating its responsibility to protect natural resources. Climate activists see the lawsuit as one potential way to force action by a White House that has publicly cast doubt on climate change science.

A federal judge in Oregon allowed the lawsuit to move forward last year, writing that “Federal courts too often have been cautious and overly deferential in the arena of environmental law and the world has suffered for it.” After a trial, the judge could order the federal government to write a plan to reduce carbon emissions to sustainable levels, either by restricting permits for fossil fuel extraction or other means.

But the Trump administration has argued that the process of going through a trial and pretrial discovery would be too burdensome, and asked the Ninth Circuit to force the lower court to dismiss the case.

Chief Judge Sidney Thomas and Judge Marsha Berzon voiced skepticism about the government’s argument on Monday, questioning whether such an extensive order was necessary.

“You come in here with an order to depose the president, that would be one thing,” Berzon told the Trump administration’s lawyer, Eric Grant. “You don’t have any order.”

Grant acknowledged that the request was “a drastic and extraordinary remedy,” but argued that it was necessary because the plaintiffs’ claims were meritless and broad, and the Oregon court had erred in its decision allowing the lawsuit to go forward.

The case is based on a legal theory known as the public trust doctrine, which holds that the U.S. government has a responsibility to protect public resources like shorelines and rivers. The plaintiffs are arguing that the environment itself needs that kind of safekeeping.

Both sides and several of the judges described the case, Juliana v. United States, as “unprecedented” during the hourlong arguments.

Judge Alex Kozinski pressed Olson, the plaintiffs’ lawyer, with a barrage of questions about whether the kids had sufficient legal standing to sue and whether the district court had gone too far.

Olson argued that the young plaintiffs would be hurt more by climate change than the average American.

“They will live far longer than you,” Olson told Kozinski, predicting that in their lifetime, the oceans could rise at least 10 feet. “The significance of the harm, the monumental threat these injuries pose to the plaintiffs, is very distinguishable from the rest of the country.”

This was the first case Kozinski heard since being accused of sexual harassment by multiple women last week.

A ruling from the Ninth Circuit panel is expected in the next few weeks or months. A trial in the case was originally scheduled for February, but would likely be pushed back if the judges allow it to go forward. The case could end up in the Supreme Court.

The lawsuit was originally filed against the Obama administration in 2015, and government lawyers conceded many of the plaintiffs’ arguments about the danger of climate change dated to before Donald Trump took office.

In the plaza across the street from the courthouse, a group of activists chanted and sang songs. Eighteen of the 21 plaintiffs attended the hearing, and several of the suit-and-tie-wearing kids gave brief speeches.

“We cannot allow our actions and our future to be determined by those in power,” said Xiuhtezcatl Martinez, a 17-year-old from Colorado.

Susan Pete of San Francisco took her 9-year-old daughter Azaliea out of school Monday morning to watch the hearing. But Azaliea, who sat in the back of the courtroom, wasn’t impressed by the dense legal arguments.

“Longest hour of my life,” she said. “I’d rather go to school.”

Contact Casey Tolan at 510-208-6425.