The Trump administration is doing everything it can to keep a huge climate lawsuit from going to trial

Our Children's Trust lawsuit plaintiffs
The youth plaintiffs outside a courthouse in Eugene, Oregon. Our Children’s Trust

The Trump administration is seeking a rare review of a preliminary decision in a landmark climate change lawsuit — before the case has even gone to trial.

The plaintiffs in the case are 21 kids who range in age from 9 to 21. They argue that the federal government is violating their constitutional rights to life, liberty, and property by failing to prevent climate change despite long-held knowledge of its dangerous consequences.

In November 2016, a federal judge denied all motions to dismiss the case, paving the way for it to go to trial. The Trump administration tried to appeal that decision (the plaintiffs named President Trump as a defendant instead of Barack Obama in February, under the federal rules), but the judge denied that request.

Now, the administration’s lawyers are petitioning for a rare legal procedure — a writ of mandamus — in which a higher court would step in and review the lower court’s decision to let the case proceed.

The youth plaintiffs aren’t seeking financial compensation for the damage climate change is causing, though many have filed statements about how global warming has specifically impacted their lives. Instead, they’re asking the court to compel federal agencies to end policies that directly hurt the environment (like permitting and subsidizing fossil fuel extraction) and move to phase out excess carbon dioxide emissions.

In their petition, the Trump administration’s lawyers suggested that Aikin’s decision exhibited a “remarkable disregard for essential separation-of-powers limitations on the role of federal courts,” since the lawsuit “seeks to have a federal court decide broad matters of national energy and environmental policy that are reserved to the elected branches of government.”

A ruling in the kids’ favour would indeed be unprecedented. But the plaintiffs and their lawyers say they’re not asking the courts to mandate specific policies — a fact noted in the contested decision.

“At its heart, this lawsuit asks this Court to determine whether defendants have violated plaintiffs’ constitutional rights,” Judge Aiken wrote. “That question is squarely within the purview of the judiciary.”

The plaintiffs also say they view the administration’s recent legal manoeuvre as little more than a last-ditch attempt to keep the case from going to trial.

“The fact that the US government is doing everything it can to avoid going to court against us makes it hard to believe they have any case whatsoever,” said 20-year-old plaintiff Kiran Oomen in a statement. “The judicial branch is a vital part to our justice system in this country, and the government’s evasion of the courts threatens the rights of every citizen in this country.”

It’s not surprising, of course, that the president does not want this case to proceed, since it could compel the government to create the very type of environmental regulations that Trump has pledged to roll back.

However, the case also presents several other problems for the administration and fossil fuel industry.

First, while the kids initially sued just the government, several industry groups — the National Association of Manufacturers, the American Fuel & Petrochemical Manufacturers, and the American Petroleum Institute (API) — legally intervened. They argued that the case’s outcome would impact their business interests, and were permitted to join the government’s side.

But at the end of May, just before the deadline at which those industry groups had to file their positions on the facts of the lawsuit (e.g. what the risks of climate change are, and when the companies knew about them), all three groups requested to withdraw from the case.

It’s now up to a judge to decide whether the groups will be allowed to leave.

If their requests are denied, it is likely that US Secretary of State Rex Tillerson will be deposed as part of the case. Tillerson was the former CEO of ExxonMobil, which is represented by the fossil fuel industry groups. He also served as chairman of API.

“The ties between the fossil fuel industry in the federal government run very deep and Mr. Tillerson will have much to add on this crucial issue,” Philip Gregory, counsel for the plaintiffs, said in a statement in January.

Second, as reports surfaced about the Trump administration removing data and information related to climate change from government websites, the plaintiffs filed a request for preservation of all documents and electronically stored information that could be relevant to the case (in other words, anything connected to the government’s knowledge of and policies on climate change).

“Destroying evidence is illegal and we just put these new US defendants and the industry defendants on notice that they are barred from doing so,” Julia Olson, the lead attorney in the case, said in a statement at the time.

Third, lawyers from the Obama administration filed an answer to the plaintiff’s complaint in January, one week before Trump’s inauguration. In it, they wrote that the government had longstanding knowledge of the causes of climate change, the negative effects of carbon dioxide emissions, and the danger that rising temperatures posed to health and security in the US. Those admissions make the case even more difficult for the administration attorneys to argue.

It’s not yet clear whether the new petition will be granted, though the rarity of the procedure makes it seem unlikely. According to Douglas A. Kysar, a Yale Law School professor who supports the kids’ case, writs of mandamus are only supposed to be used in situations when the regular court procedure has to be overruled in order to correct a legal error or avoid an injustice.

“For the Trump Justice Department to even seek a writ of mandamus in the current context is offensive to Judge Aiken, to the entire federal judiciary, and, indeed, to the rule of law itself,” he said in a statement.

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