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Climate “trial of the century” moves ahead

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A group of children has taken the U.S. government – and soon Donald Trump – to court for failing to protect them from climate change.  The landmark lawsuit, Julian v. U.S., first reported in the May-June 2016 issue of NewsNotes is likely to go to trial by Fall 2017. The following article was published in the January-February 2017 issue of NewsNotes.

Called the “biggest trial of the century” by some legal experts, twenty-one children have passed yet another important hurdle in their quest to hold the US. government responsible for failing to protect their futures from climate change. 

Two days after the presidential election, U.S. District Court judge Ann Aiken denied motions by the defense – the federal government and three large business associations – to dismiss the case. The landmark lawsuit is now clear to proceed to trial.  

The plaintiffs – twenty-one children ages 9 to 20 – claim that the U.S. government is placing their life, liberty, and property in jeopardy by its lack of action to address climate change.

In her ruling, federal judge Aiken indicated her support for two fundamental arguments made by the plaintiffs – the notion of public trust and substantive due process rights. ”I have no doubt that the right to a climate system capable of sustaining human life is fundamental to a free and ordered society," she wrote, explaining that public trust rights, which “both predated the Constitution and are secured by it,” cannot be “legislated away.”

“This action is of a different order than the typical environmental case,” the judge concluded. “It alleges that defendants’ actions and inactions—whether or not they violate any specific statutory duty—have so profoundly damaged our home planet that they threaten plaintiffs’ fundamental constitutional rights to life and liberty.”

The case will likely go to trial in the summer or fall of 2017. 

If the plaintiffs win, the Trump administration will be required to drastically reduce fossil fuel production – an order that the administration would surely appeal. If the case were to reach the Supreme Court, few legal experts expect the current eight justices to rule in favor of the children. If a Trump appointee were to join the court, the children’s odds of success are even lower.

President Obama could issue a consent decree in which he would agree to take action in support of the court ruling rather than going forward with the trial. But even if he were to do so, the Trump administration could stop such action, sending the case back to the courts and eventually to the Supreme Court.

During the next presidency, climate action at the local and state level will likely advance. Lawsuits similar to Julian v. U.S. have already been successful in Massachusetts and Washington states. More cases are moving forward. 

Professor Mary Christina Wood at the law school of the University of Oregon, an expert in natural resources and public trust law, said if both the executive and legislative branches fail to act, then the judicial branch must intervene. 

Wood's book, Nature's Trust: Environmental Law for a New Ecological Age, published by Cambridge University Press in 2014, originated the approach called “atmospheric trust litigation” which applies public trust doctrine to compel government action on climate change.  

On Julian v. U.S., Professor Wood said: “whichever way the case goes, it is serving a very important purpose in reframing the climate crisis as one which affects human rights, and fundamental rights that citizens of the United States hold, and also citizens of other nations across the world.