'Future Generations' Sue the USA over Global Warming

Chief Justice John Roberts ordered a stay recently of a "landmark" trial in the federal lawsuit against the United States and various executive agencies, filed on behalf of 21 children "and future generations."  Juliana v. United States alleges violations of the children's fundamental right to "a climate system capable of sustaining human life."  Acting as the guardian for the minor plaintiffs is James Hansen, the climate change equivalent of Patient Zero in the pandemic of terror over global warming.

The organization that initiated this particular example of lawfare is Our Children's Trust.  OCT claims to provide a voice for youth in its mission to "protect earth's atmosphere," preferably through "legally binding, science-based" climate recovery policies.  Juliana illustrates OCT's idea of legally binding controls over American energy policy: the plaintiffs are requesting a court order directing the U.S. government to "cease [its] permitting, authorizing, and subsidizing of fossil fuels and, instead, move to swiftly phase out CO2 emissions."

Quoted in The New York Times, Justice Department attorney Jeffrey H. Wood is calling the lawsuit "an unconstitutional attempt to use a single Oregon court to control the entire nation's energy and climate policy."  In its recent petition to stay the case, the United States argued that the lawsuit is "an attempt to redirect federal environmental and energy policies through the courts rather than through the political process, by asserting a new and unsupported fundamental due process right to certain climate conditions."

Even Obama's Justice Department fought this case (Juliana was filed in 2015), warning in its earlier stay request against a court empowered "to make and enforce national policy concerning energy production and consumption, transportation, science and technology, commerce, and any other social or economic activity that contributes to carbon dioxide ... emissions."

So could a lone Oregon U.S. district judge really end up with that kind of power? Let's see: a lone California U.S. district judge holds U.S. border enforcement in her hand, and other black-robed solo acts have decreed how things will be with DACA, the Trump travel ban, transgenders in the military, and sanctuary cities.  And didn't the Supreme Court's discovery of a previously unnoticed fundamental right in the Constitution to so-called marriages between members of the same sex come down to how Anthony Kennedy felt about the idea?

Notably, Juliana's presiding judge, U.S. district judge Ann Aiken, did in fact rely on Kennedy's creative thinking in Obergefell to reach her own "reasoned judgment" that there's a "new fundamental right" to a particular climate system.  In a 2016 opinion, she sympathetically summarized the Juliana plaintiffs' allegations to say the government's actions and inactions "have so profoundly damaged our home planet that they threaten plaintiffs' fundamental constitutional rights to life and liberty."  A Clinton appointee, Aiken's history on the bench doesn't make her out to be a radical.  Nonetheless, in Juliana, Aiken has refused attempts through two administrations to get the case dismissed on the persuasive grounds that "the young people don't have standing to sue [a legal formula requiring plaintiffs to show that, among other things, they have suffered a concrete, particular injury because of the actions of the defendant] and that the courts are the wrong place to deal with the issue."  She's also refused to certify any of her opinions so the government can challenge them on appeal.

We saw in 2010 how a California district judge, Vaughn Walker, determined to overturn California's successful Proposition 8 constitutional provision defining marriage, used a lawsuit challenging Prop 8 to stage a show trial.  At the time, Ed Whelan described Walker's "manifest design to turn the lawsuit into a high-profile, culture-transforming, history-making, Scopes-style show trial of Prop 8's sponsors."  Bill May, chairman of the successful campaign that got Prop 8 passed, said the attorneys challenging Prop 8 basically "want[ed] to make out everybody defending marriage to appear to be bigots and discriminatory."

In the process, Vaughn Walker proved himself a model unfit judge.  Among other abuses, he illegally fiddled the court rules in an attempt on the eve of trial to have it televised, the better to intimidate pro-Prop 8 witnesses with being framed on YouTube as religious nuts who hate homosexuals.  The Supreme Court slammed the brakes on Walker's TV idea and then, on the third day of trial, found that Walker had "attempted to change its rules at the eleventh hour to treat this case differently [from] other trials in the district."  Trying to change the rules and giving special handling to a case so only one side can win perfectly sum up judicial unfitness.

It would be premature, and unfair, to accuse Judge Aiken of Walker-level abuses at this stage.  But she has been like Walker in this regard: they both needlessly decided that the cases before them "couldn't be resolved, one way or the other (as other courts have done in similar cases), as a matter of law but would instead require extensive discovery into supposed factual issues."  Aiken always intended that the plaintiffs get their "requested "Trial of the Century" – a trial scheduled to last 50 days.  That's a lot of hours for James Hansen, and numerous other putative climate change experts, to inventory the Parade of Horribles caused by Donald Trump, the government, and the greedy energy sector's satanic indifference to the all-devouring planetary emergency.

Unfortunately, the crucial factual question of whether the planetary emergency is even real isn't an issue in Juliana, thanks to the Obama administration lawyers' conceding the truth of the theory in their initial response to the lawsuit.  That means that the Trial of the Century will be "a 50-day liability phase trial, a finding that the federal government is liable for the harms of climate change, and further proceedings to impose an unprecedented invasive remedy."  Think of it as the sentencing phase of a criminal proceeding, deciding the defendant's punishment after he's already pleaded guilty.

The Supreme Court, to whom the government was driven to seek recourse on basic procedural matters after three years of Judge Aiken's and the Ninth Circuit's intransigence, has already signaled its doubts about the plaintiff's' case.  In July, a five-justice majority remarked that "[t]he breadth of [plaintiffs'] claims is striking" and urged Aiken to reconsider her refusals to dismiss the case, and the need for discovery and trial, when the question of whether those broad claims can even be decided by a federal court "presents substantial grounds for difference of opinion."

Last week, Justice Roberts finally granted the government's petition to temporarily stay the case, pending the Supreme Court ruling on the government's request that Juliana be dismissed.

If it isn't dismissed, we can look forward to a trial featuring expert after expert forecasting in exactly which decade the last human being will gasp the species' final breath.  Then there will be lots of adolescent plaintiffs testifying sincerely to their "truth": "One kid says that his family's farm has been damaged by drought and wildfire.  Another says that his childhood home has been devalued by rising sea levels.  A third alleges an assault on his whole culture as man-made climate change upends the natural world."

Here's hoping Juliana gets dismissed as it deserves to be.  It's bad enough that two generations of impressionable children have been suckled with the hopeless dogma that our broiling planet is only years away from being uninhabitable.  They shouldn't now be forced to dance like marionettes in a judicial Punch and Judy show.

T.R. Clancy looks at the world from Dearborn, Michigan.  You can email him at trclancy@yahoo.com.

Chief Justice John Roberts ordered a stay recently of a "landmark" trial in the federal lawsuit against the United States and various executive agencies, filed on behalf of 21 children "and future generations."  Juliana v. United States alleges violations of the children's fundamental right to "a climate system capable of sustaining human life."  Acting as the guardian for the minor plaintiffs is James Hansen, the climate change equivalent of Patient Zero in the pandemic of terror over global warming.

The organization that initiated this particular example of lawfare is Our Children's Trust.  OCT claims to provide a voice for youth in its mission to "protect earth's atmosphere," preferably through "legally binding, science-based" climate recovery policies.  Juliana illustrates OCT's idea of legally binding controls over American energy policy: the plaintiffs are requesting a court order directing the U.S. government to "cease [its] permitting, authorizing, and subsidizing of fossil fuels and, instead, move to swiftly phase out CO2 emissions."

Quoted in The New York Times, Justice Department attorney Jeffrey H. Wood is calling the lawsuit "an unconstitutional attempt to use a single Oregon court to control the entire nation's energy and climate policy."  In its recent petition to stay the case, the United States argued that the lawsuit is "an attempt to redirect federal environmental and energy policies through the courts rather than through the political process, by asserting a new and unsupported fundamental due process right to certain climate conditions."

Even Obama's Justice Department fought this case (Juliana was filed in 2015), warning in its earlier stay request against a court empowered "to make and enforce national policy concerning energy production and consumption, transportation, science and technology, commerce, and any other social or economic activity that contributes to carbon dioxide ... emissions."

So could a lone Oregon U.S. district judge really end up with that kind of power? Let's see: a lone California U.S. district judge holds U.S. border enforcement in her hand, and other black-robed solo acts have decreed how things will be with DACA, the Trump travel ban, transgenders in the military, and sanctuary cities.  And didn't the Supreme Court's discovery of a previously unnoticed fundamental right in the Constitution to so-called marriages between members of the same sex come down to how Anthony Kennedy felt about the idea?

Notably, Juliana's presiding judge, U.S. district judge Ann Aiken, did in fact rely on Kennedy's creative thinking in Obergefell to reach her own "reasoned judgment" that there's a "new fundamental right" to a particular climate system.  In a 2016 opinion, she sympathetically summarized the Juliana plaintiffs' allegations to say the government's actions and inactions "have so profoundly damaged our home planet that they threaten plaintiffs' fundamental constitutional rights to life and liberty."  A Clinton appointee, Aiken's history on the bench doesn't make her out to be a radical.  Nonetheless, in Juliana, Aiken has refused attempts through two administrations to get the case dismissed on the persuasive grounds that "the young people don't have standing to sue [a legal formula requiring plaintiffs to show that, among other things, they have suffered a concrete, particular injury because of the actions of the defendant] and that the courts are the wrong place to deal with the issue."  She's also refused to certify any of her opinions so the government can challenge them on appeal.

We saw in 2010 how a California district judge, Vaughn Walker, determined to overturn California's successful Proposition 8 constitutional provision defining marriage, used a lawsuit challenging Prop 8 to stage a show trial.  At the time, Ed Whelan described Walker's "manifest design to turn the lawsuit into a high-profile, culture-transforming, history-making, Scopes-style show trial of Prop 8's sponsors."  Bill May, chairman of the successful campaign that got Prop 8 passed, said the attorneys challenging Prop 8 basically "want[ed] to make out everybody defending marriage to appear to be bigots and discriminatory."

In the process, Vaughn Walker proved himself a model unfit judge.  Among other abuses, he illegally fiddled the court rules in an attempt on the eve of trial to have it televised, the better to intimidate pro-Prop 8 witnesses with being framed on YouTube as religious nuts who hate homosexuals.  The Supreme Court slammed the brakes on Walker's TV idea and then, on the third day of trial, found that Walker had "attempted to change its rules at the eleventh hour to treat this case differently [from] other trials in the district."  Trying to change the rules and giving special handling to a case so only one side can win perfectly sum up judicial unfitness.

It would be premature, and unfair, to accuse Judge Aiken of Walker-level abuses at this stage.  But she has been like Walker in this regard: they both needlessly decided that the cases before them "couldn't be resolved, one way or the other (as other courts have done in similar cases), as a matter of law but would instead require extensive discovery into supposed factual issues."  Aiken always intended that the plaintiffs get their "requested "Trial of the Century" – a trial scheduled to last 50 days.  That's a lot of hours for James Hansen, and numerous other putative climate change experts, to inventory the Parade of Horribles caused by Donald Trump, the government, and the greedy energy sector's satanic indifference to the all-devouring planetary emergency.

Unfortunately, the crucial factual question of whether the planetary emergency is even real isn't an issue in Juliana, thanks to the Obama administration lawyers' conceding the truth of the theory in their initial response to the lawsuit.  That means that the Trial of the Century will be "a 50-day liability phase trial, a finding that the federal government is liable for the harms of climate change, and further proceedings to impose an unprecedented invasive remedy."  Think of it as the sentencing phase of a criminal proceeding, deciding the defendant's punishment after he's already pleaded guilty.

The Supreme Court, to whom the government was driven to seek recourse on basic procedural matters after three years of Judge Aiken's and the Ninth Circuit's intransigence, has already signaled its doubts about the plaintiff's' case.  In July, a five-justice majority remarked that "[t]he breadth of [plaintiffs'] claims is striking" and urged Aiken to reconsider her refusals to dismiss the case, and the need for discovery and trial, when the question of whether those broad claims can even be decided by a federal court "presents substantial grounds for difference of opinion."

Last week, Justice Roberts finally granted the government's petition to temporarily stay the case, pending the Supreme Court ruling on the government's request that Juliana be dismissed.

If it isn't dismissed, we can look forward to a trial featuring expert after expert forecasting in exactly which decade the last human being will gasp the species' final breath.  Then there will be lots of adolescent plaintiffs testifying sincerely to their "truth": "One kid says that his family's farm has been damaged by drought and wildfire.  Another says that his childhood home has been devalued by rising sea levels.  A third alleges an assault on his whole culture as man-made climate change upends the natural world."

Here's hoping Juliana gets dismissed as it deserves to be.  It's bad enough that two generations of impressionable children have been suckled with the hopeless dogma that our broiling planet is only years away from being uninhabitable.  They shouldn't now be forced to dance like marionettes in a judicial Punch and Judy show.

T.R. Clancy looks at the world from Dearborn, Michigan.  You can email him at trclancy@yahoo.com.