stiglitz330_Brianna SoukupPortland Portland Press Herald via Getty Images_julianaclimate Brianna Soukup/Portland Press Herald via Getty Images

The Biden Administration vs. Climate Youth

The judicial system is an important mechanism through which the public can hold elected leaders accountable; and for children who cannot yet vote, it is one of the only options. That makes the Biden administration's tenacious efforts to block a climate lawsuit filed by youth activists all the more galling.

NEW YORK – While we are all paying a steep price for climate change already, today’s children and young people will have to endure far worse conditions, and for far longer. In fact, climate change will only continue to intensify for the rest of their lives if we remain on our current path. That is why a group of young Americans filed a lawsuit against the United States in 2015, demanding that climate change be responsibly considered in government decisions.

I will be gone well before the full effects of climate change are felt, but each of the 21 young people who filed the suit, Juliana v. US, will see their lives altered in fundamental ways. When it is their future at stake, asking American children to wait until they are old enough to vote for change is not a viable option.

The judicial system (when it works) is an important mechanism through which the public can hold elected leaders accountable. And for children, at this late hour, it is their only remedy. Climate change, now a major cause of youth anxiety and depression, is already affecting their physical and mental health.

The “Juliana 21” are making the case for all Americans. We all have a right to a livable climate, with clean air and water. But rather than proceeding with the lawsuit, the federal government seems adamantly opposed to the young plaintiffs having their day in court. In the nine years since Juliana was filed, the Juliana 21 and their legal team have fought 14 attempts by the US government to stop it in its tracks. (Full disclosure: I have been a pro bono expert witness in this case.)

Just last month, for the seventh time in the Juliana lawsuit, the federal government filed for a writ of mandamus, an extreme legal tactic in which a higher court orders a lower court not to hear a case (rather than following the usual process, where the higher court rules on a case only after it has been heard by lower courts). The new move subverts the judicial process and keeps the Juliana 21 from having their evidence heard and considered in open court.

The government’s actions are puzzling, considering that courts around the world and in the US have been allowing young plaintiffs to bring similar suits. For example, in another case brought by the non-profit Our Children’s Trust (which also filed the Juliana case), a Montana court recently determined that every additional ton of greenhouse-gas emissions would exacerbate the already grave constitutional injuries to the young plaintiffs. The judge therefore ruled that government officials must consider these harms carefully when reviewing applications for fossil-fuel permits. With Montana’s Supreme Court having rejected an effort by the state to pause implementation of this landmark ruling, state agencies are now already working to apply the new standard.

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Juliana, in its own way, has also made legal history: No other case in the US has had seven petitions for writ of mandamus against it. As the plaintiffs note, “of the more than 40,000 civil cases in which the US is a defendant represented by the Department of Justice,” only in Juliana “has the Solicitor General sought to stop the development of an evidentiary record at trial…purely on the basis that it costs the government too much money to proceed.”

As the Montana court recognized, the climate crisis grows more grave by the day. Every day, more carbon dioxide is emitted into the atmosphere; and every day, the US government spends tens of millions of dollars subsidizing the fossil-fuel industry. This costs us doubly, because we are paying both for the subsidy itself and for the environmental and health damages caused by drilling and powering our energy sectors with highly polluting fuels instead of clean and available renewable energy.

If the price of litigating the case is too high for the government, that is partly because the government has waged a nine-year battle to stifle the Juliana 21’s voices. Indeed, another delay would merely add to the overall expected litigation costs. Moreover, my own assessment of the environmental costs incurred over these past nine years of delays shows that they are overwhelmingly higher than the financial costs cited by the government.

This is not a matter of the administration saying, “We don’t interfere with the Department of Justice.” In this case, the administration is the defendant, and it has full responsibility for the actions of its solicitor general.

The best outcome – morally, economically, and environmentally – would be to settle with the children. All they want is for the government to consider the effects of climate change on them and later generations when making policy decisions. That seems like a no-brainer.

If, for some peculiar reason, the administration does not want to settle, then it should at least allow the matter to go to trial. The US Constitution and judicial system are powerful vehicles for shaping what our democracy delivers for young people who have no vote on a life-threatening, long-term issue such as the climate crisis.

The Juliana 21 understand that if the Solicitor General succeeds again in delaying their trial, they will remain powerless to curtail their government from making the problem worse. Just as there is urgency in addressing the climate crisis, there is urgency – right now – in stopping the Solicitor General from resorting to the extraordinary tactic of asking the Ninth Circuit Court of Appeals or the Supreme Court to dismiss the case, effectively denying the young plaintiffs their right to a trial.

We must stand behind the Juliana 21. In this case, justice delayed truly is justice denied.

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