Supreme Court Kiboshes Kids’ Climate Claims (For Now)


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.

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.

Steve Harvey

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.


Pennsylvania Supreme Court to Decide Fresh Consideration Rule for Employee Non-Competes

Yesterday, the Pennsylvania Supreme Court granted allocator in Socko v. Mid-Atlantic Systems of CPA, Inc., 99 A.3d 928 (Pa. Super. Ct. 2014). Socko is the Pennsylvania Superior Court decision from May 2014 that re-affirmed the rule that fresh consideration is required for a non-compete signed after the inception of employment. In Socko, the employer tried to avoid the fresh consideration requirement by relying on Pennsylvania’s Uniform Written Obligations Act (“UWOA”). The UWOA provides that a written release or promise “shall not be invalid or unenforceable for lack of consideration, if the writing also contains an additional express statement . . . that the signer intends to be legally bound.”

The Superior Court called the issue one of “first impression in this Commonwealth,” but federal district courts interpreting Pennsylvania law had split on the issue of whether the UWOA applies in the non-compete context. On the merits, the Superior Court sided with the employee and held that the UWOA does not apply to restrictive covenants in the employment context, reasoning that non-compete covenants “are disfavored in Pennsylvania because they are in restraint of trade and may work significant hardships on employees agreeing to them.”

The Supreme Court’s decision in Socko will be of interest to business owners who use non-compete and to employees who are subject to non-competes. The subjects take on particular importance because in our experience the number of non-compete cases in litigation tends to rise with a growing economy.

How do I look? Supreme Court to Weigh In On Dress and Grooming Policies in Two Religious Liberty Cases

The Supreme Court this term will consider two religious accommodation cases involving dress and grooming requirements. Regardless of how they are decided, the cases are a reminder to employers to consider employees’ religious rights when making employment decisions or developing policies, including policies on dress or grooming.

In Holt v. Hobbs,[1] the Court will consider whether a prisoner has the right to grow a beard for religious reasons.  Arkansas inmate Gregory Holt believes his Muslim faith requires him to grow a beard. He challenged an Arkansas state prison system policy prohibiting inmates from growing beards (except for quarter-inch beards for inmates with diagnosed dermatologic problems).  The prison system argued the policy was justified by security concerns and the possibility that beards could conceal contraband.  The District Court ruled against Mr. Holt, finding that prison officials’ security concerns deserved deference—even though the court itself doubted the validity of the security concerns. The Eighth Circuit Court of Appeals affirmed. At issue before the Supreme Court is how much deference to give prison officials when policies infringe on religious liberty, which is protected by federal statute. And if deference is not required, how are courts to draw the line on balancing religious rights with competing concerns?

In the second case, EEOC v. Abercrombie & Fitch Stores, Inc.,[2] 17-year-old Samantha Elauf, who is Muslim, wore a hijab—a traditional Muslim headscarf—when she interviewed for a salesperson position in an Abercrombie store in Tulsa.  She did not mention the hijab or her religion in her interview, but the interviewer assumed she was Muslim and that she wore the hijab for religious reasons.  Evidence suggested the hijab influenced the decision not to hire her because it conflicted with Abercrombie’s “look policy,” which required sales persons to wear “classic East Coast collegiate style of clothing.”  The EEOC brought suit on Ms. Elauf’s behalf and won summary judgment, but the Tenth Circuit Court of Appeals reversed that decision, holding that because Ms. Elauf had not notified Abercrombie of her need to wear the hijab for religious reasons, her religious accommodation claim failed as a matter of law.  The Tenth Circuit reasoned that the burden of notice is on the employee or applicant, disagreeing with the EEOC’s view that something less than particularized, actual knowledge of the need for an accommodation is required. That issue will now be addressed by the Supreme Court.

The two cases follow last term’s Burwell v. Hobby Lobby decision in which the Supreme Court ruled that some corporations could refuse to provide contraception coverage to their employees on religious grounds. After finding broad religious freedom rights for corporations, many are interested in how the Court will interpret those rights in the context of individuals.

The Holt case was argued on October 7, 2014, and the Abercrombie case has not yet been set for oral argument.

-Therese Dennis

[1] No. 13-6827 (argued Oct. 7, 2014).

[2] No. 14-86 (cert. granted Oct. 2, 2014).