A Historic Legal Battle

As evidence of man-made climate change has mounted and the warnings of the global scientific community have grown more severe, environmental activists have increasingly sought to bring about policy changes through the courts, following a model established by civil rights activists a generation earlier who won progress through landmark cases like Brown v. Board of Education of Topeka I and II.

Juliana is one such case and it has the potential to be historic. The plaintiffs argue that the federal government’s actions that contributed to the climate crisis violated their rights under the Fifth Amendment’s due process and equal protection clauses.

Despite the efforts of the federal government to have the case delayed or dismissed, the case has gained support from more than thirty-two thousand young people under the age of twenty-five, multiple members of Congress and the Senate, legal scholars, businesses, historians, environmentalists, medical doctors, international lawyers, women’s organizations, and religious groups, all of whom have signed on to amicus briefs in support of the plaintiffs.

In January 2020, the Ninth Circuit Court of Appeals ruled that the plaintiff’s arguments lacked standing because their requested relief — an order that the government “prepare and implement an enforceable national remedial plan to phase out fossil fuel emissions and draw down excess atmospheric CO2” — was not within the power of the court.

But the court ruling was still significant because it left the door open to a declaratory judgment, a legal determination of what the relationship is between the parties and what the law requires under the circumstances.

“Our hurdle is that it’s not that [the plaintiffs] don’t have rights or that we don’t have valid claims or that we can’t prove these violations,” explained Julia Olson, an attorney for the plaintiffs, “it’s that there’s this jurisdictional hurdle.”

The plaintiffs’ motion to amend their complaint drops their request for a remedial plan and instead seeks only a declaratory judgment that would give them standing to move their case forward. Olson said declaratory relief would be a “first step” to their goal of forcing policy change.

There is precedent for this kind of strategy, Olson explained, noting that in Brown v. Board of Education I, the court issued declaratory relief, holding that segregation in schools was unconstitutional.

“A year later, they considered what further relief would be needed and that was when they directed states to develop plans for integrating their schools,” she noted.

Doing the Bidding of Fossil Fuels

The new filings from the Republican attorneys general come in the eleventh hour of a six-year-long legal saga. If the group successfully blocks the motion to amend and prevents settlement negotiations, they will strike a blow for the fossil fuel industry that has long funded them.

Leading the effort is Alabama attorney general Steve Marshall, RAGA’s policy chairman. Marshall is joined by the attorneys general for Alaska, Arkansas, Georgia, Indiana, Louisiana, Mississippi, Missouri, Montana, Nebraska, North Dakota, Ohio, Oklahoma, South Carolina, Texas, Utah, and West Virginia — all of whom are members of RAGA.

Despite the fact that citizens of their states are impacted by climate change — the winter storms that knocked out Texas’s power grid in February, for example, are believed to have been a direct result of climate change — the attorneys’ motion argues that they ought to be allowed to intervene because their states’ interests would be harmed and the Biden administration is not adequately protecting their interests. As evidence of the latter claim, the officials point to the federal government agreeing to settlement negotiations with the plaintiffs.

“Because defendants decisively prevailed in this litigation, their agreement to participate in any post-mandate settlement discussion necessarily raises concerns,” the motion reads. “At best, they will preserve their victory; at worst, they will arrogate to themselves policymaking [sic] powers that the people entrusted to their elected representatives, not the Department of Justice, and in so doing harm the states and their citizens.”

The motion also accuses the Biden administration of using “unprecedented, collusive litigation maneuvers to avoid the legal processes our government must normally respect before implementing new policies” and “using collusive litigation tactics to overhaul our national energy system via federal-court fiat would deprive the States and their people of their rightful place in our constitutional order and threaten the economic security of the States and their citizens.”

Speaking about the attempted intervention, Olson, the attorney for the plaintiffs, says that the Republican officials are “six years too late to be coming in and wanting a seat at the table,” and argued that they are simply trying “to represent the fossil fuel industry’s financial interests.”

Regarding the arguments of the attorneys general, Olson said: “They didn’t come in with evidence. They didn’t back up their egregious assertions that there’s collusion happening between these young plaintiffs and the federal government.”

Olson explained that her team hadn’t “had a single conversation with anyone inside the Biden administration,” noting that the Department of Justice had “completely cut us off from being able to talk to anyone.”