On Friday, October 19, Chief Justice Roberts issued an administrative stay order in Juliana v. U.S., a lawsuit over climate change in federal court in Oregon against the federal government with a group of children as plaintiffs. https://www.supremecourt.gov/orders/courtorders/101918zr1_086c.pdf?fbclid=IwAR0M2xwMUaoXOWUc8yuKFnXKqvImJk50pPiu0J8gULSPVhoN9jpoI9mlF5M
The trial was scheduled to begin on October 29. The case survived motions to dismiss in the trial court, two trips to the 9th Circuit, and a prior stay request in the Supreme Court, which it unanimously denied on July 30, 2018.
The government sought the stay claiming irreparable harm from being forced to participate in a trial scheduled to last 50 days that it claims is inconsistent with Article III and the separation of powers under the Constitution and allegedly violates the law in other respects.
The trial was expected to feature numerous experts testifying about a wide range of topics, including the impacts of climate change on ocean chemistry, sea level, glaciers, terrestrial ecosystems, and human physical and mental health as well as the technical and economic feasibility of transitioning to renewable sources of energy and sequestering carbon from the atmosphere.
Effect of Stay on Trial
The stay order is temporary. It lasts until after the plaintiffs file a response on October 23 and further order of the Court. Theoretically, this means the Court is only staying the case to give itself time to decide whether to issue a longer stay of the case.
The stay order will make it very difficult if not impossible for the trial to begin on October 29 or anytime soon. This will have the practical effect of preventing the plaintiffs from commanding national news attention for a lawsuit about the science and danger of climate change. Coming just days before the November 6 election, some will claim that the five conservative justices are playing politics.
The timing of the stay is particularly hard on the plaintiffs, given that the case is over three years old. According to a plaintiffs’ press release, their 20 experts, all working pro bono, have already booked their travel to be in Oregon for trial. Plaintiffs’ experts include Nobel Laureate Joseph Stiglitz and renowned climate scientists including Dr. Kevin Trenberth, Dr. Ove Hoegh-Guldberg, and Dr. Eric Rignot.
Main Allegation and Relief Sought
The plaintiffs allege that, through the government’s affirmative actions that cause climate change, it has violated the youngest generation’s constitutional rights to life, liberty, and property, as well as failed to protect essential public trust resources. They seek declaratory and injunctive relief, including an order requiring the U.S. government “to prepare and implement an enforceable national remedial plan to phase out fossil fuel emissions and draw down excess atmospheric CO2 so as to stabilize the climate system and protect the vital resources on which Plaintiffs now and in the future will depend.”
What Happens Next
It will be noteworthy if the Court issues any order before October 29. If the Court as a whole issues an order before then denying the stay, the trial could begin on or soon after October 29. Otherwise, the parties and the trial court will have to shelve the plan for the trial until the Court rules, which could take weeks. Either way, court watchers will look first to see how the justices voted on this case, which stands as a proxy for concern about climate change.
Our Children’s Trust
The plaintiffs’ legal team is led by Our Children’s Trust, a nonprofit organization based in Eugene, Oregon. Its mission is to give young people a legal and public platform on the climate issue. https://www.ourchildrenstrust.org/
Steve Harvey is the founder and president of A Call to the Bar: Lawyers for Common Sense on Climate Change, a nonpartisan, nonprofit group of lawyers, law professors, law students, and citizens dedicated to using the law to secure the rights of all people to a healthy and sustainable planet earth.