In North America, the months of August and September were marked by unprecedented natural disasters. Hurricane Harvey devastated many underserved communities in Houston, Texas, while Hurricane Irma wreaked havoc over the Florida Keys after tearing through parts of the Caribbean. In an August 28 article, the National Aeronautics and Space Administration (NASA) noted that arid conditions across the Western United States had caused dozens of wildfires to date this year. In Oregon, the Whitewater fire burned through approximately 11,000 acres of land, while a series of 12 smaller active fires in Idaho covered 31,036 acres.

Faced with the prospect of environmental catastrophe, children from across the country are moving past protesting in the streets and have taken legal action against the United States government in federal court. The marquee case is Juliana v. United States,[1] filed in 2015 by 21 youth plaintiffs ranging from 10 to 21 years of age. The suit was brought before Judge Ann Aiken and Magistrate Judge Thomas Coffin of the U.S. District Court of Oregon. The youth plaintiffs argue that through government actions, which have accelerated climate change, the government has violated children’s constitutional rights to life, liberty, and property, and has failed to protect essential public trust resources. They are joined by several other plaintiffs, including world renowned climate scientist Dr. James E. Hansen, public interest legal organization Our Children’s Trust, and Colorado-based non-profit organization Earth Guardians.

The suit was not taken lightly by government attorneys, who on November 17, 2015 filed to have it dismissed arguing that plaintiffs failed to state a claim under the constitution, lacked standing in federal court, and that the federal court lacked jurisdiction. On November 10, 2016, Judge Aiken issued an historic opinion and order denying the government’s motion to dismiss and allowing the case to proceed to trial. On page four of the opinion Judge Aiken stated explicitly that, “This lawsuit is not about proving that climate change is happening or that human activity is driving it. For the purposes of this motion, those facts are undisputed.” On page 51 she further noted that, “Although the public trust predates the Constitution, plaintiffs’ right of action to enforce the government’s obligations as trustee arise from the Constitution…plaintiffs’ public trust claims are properly categorized as substantive due process claims.”

Yet again, the government would not be deterred. On June 9, 2017 government attorneys fired back with an unprecedented legal move, filing a motion requesting a writ of mandamus from the Ninth Circuit Court of Appeals in an attempt to quash the suit. The Wex Legal Dictionary defines a writ of mandamus as “an order from a court to an inferior government official ordering the government official to properly fulfill their official duties or correct an abuse of discretion.” These orders appear in federal courts when a party to a suit wants to appeal a judge’s decision but is blocked by rules against interlocutory appeals. In a 2004 ruling, Cheney v. U.S., the Supreme Court described mandamus as a “drastic and extraordinary remedy” to be used in “only exceptional circumstances.” It seems that for the government, desperate times call for desperate measures.

On June 28, 2017, Magistrate Judge Coffin issued an order releasing fossil fuel industry defendants including the American Petroleum Institute, National Association of Manufacturers, and the American Fuel and Petrochemical Manufacturers which had originally intervened in the case, also setting forth a trial date for February 5, 2018 before Judge Aiken. It was immediately followed by a Ninth Circuit order issuing a stay in the proceedings on July 25, 2017. In the order, the Ninth Circuit requested that attorneys for the youth plaintiffs respond to the government’s writ of mandamus, and the youth filed their answer on August 28, 2017.

The government’s answer was bolstered on September 5, 2017 by support from eight amicus curiae briefs filed in opposition to the Trump Administration’s mandamus petition. The amici include the Center for International Environmental Law (CIEL), the Environmental Law Alliance Wolrdwide (ELAW), EarthJustice, Greenpeace, Eco-Justice Ministries, The Shalom Center, the League of Women Voters of the United States, the Niskanen Center, the Sierra Club, Professor Doug Kysar at Yale Law School, and Professor Erwin Chemerinsky at Berkeley School of Law.

Perhaps more impressive than the support received by youth plaintiffs in the case is the plaintiffs’ fearlessness in telling their stories and pursuing justice. In a live interview with Democracy Now’s Amy Goodman, Nathan Baring, a 17-year-old plaintiff commented:

“Climate change is having really adverse effects on Alaska right now, just in my back yard . . . around Fairbanks. The Arctic is warming twice as fast as the rest of the United States. [O]ur winters are getting shorter. The wildfire season is getting longer. It’s ravaging forests, coastal erosion. And I’m afraid that the effects that we are seeing . . . are only going to be amplified by the current administration and by the actions that our government is taking right now.”

The Ninth Circuit’s response to the government’s writ of mandamus will determine whether this case can proceed to trial after all. With that decision looming in the distance, the youth plaintiffs and attorneys have vowed to continue their fight, and the world awaits.

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[1] For the Juliana v. United States complaint, the June 28 order from Judge Coffin, the July 28 letter from the Ninth Circuit, youth plaintiffs’ answer to the writ of mandamus, and other filings, please refer to Our Children’s Trust at the following link: https://www.ourchildrenstrust.org/court-orders-and-pleadings.

By: Julia Baez Valentin