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Appeals court throws out lawsuit by children seeking to force action on climate crisis

Robin Loznak

A federal appeals court on Friday threw out a heavily promoted but long-shot lawsuit by a group of children and teenagers trying to force the federal government to take action to address the climate crisis.

The 2-1 ruling says the children must look to the political branches — Congress and the executive branch — for action, rather than the courts.

Action in Washington, however, has gone the other way, with the Trump administration pulling out of the Paris climate accord and looking to rewrite Obama-era environmental laws limiting greenhouse gas emissions responsible for the increase in global temperatures and associated effects of climate change.

“The plaintiffs have made a compelling case that action is needed; it will be increasingly difficult in light of that record for the political branches to deny that climate change is occurring, that the government has had a role in causing it, and that our elected officials have a moral responsibility to seek solutions,” the majority opinion states.

“We reluctantly conclude, however, that the plaintiffs’ case must be made to the political branches or to the electorate at large, the latter of which can change the composition of the political branches through the ballot box. That the other branches may have abdicated their responsibility to remediate the problem does not confer on Article III courts, no matter how well-intentioned, the ability to step into their shoes.”

The lawsuit began in 2015 during the Obama administration. The children suing allege their constitutional rights to life, liberty and property are being violated by a US government that is knowingly promoting the extraction and burning of fossil fuels, which cause dangerous levels of warming, raising sea levels and promoting droughts and storms.

They also say they have a right to a safe atmosphere, and that they are being discriminated against as young people who will bear outsize consequences of the climate emergency.

Judges Andrew Hurwitz and Mary Murguia were in the majority. Judge Josephine Staton dissented. All three were nominated by President Barack Obama.

In her stinging dissent, Staton said the government is blatantly ignoring the climate crisis.

“In these proceedings, the government accepts as fact that the United States has reached a tipping point crying out for a concerted response — yet presses ahead toward calamity. It is as if an asteroid were barreling toward Earth and the government decided to shut down our only defenses,” Staton wrote. “Seeking to quash this suit, the government bluntly insists that it has the absolute and unreviewable power to destroy the Nation.”

Our Children’s Trust, the group behind the lawsuit, said it plans to ask the full 9th Circuit to review the three-judge panel’s decision.

Kelsey Juliana, 23, the lead plaintiff in the case, said she was “disappointed” in the ruling.

“Such a holding is contrary to American principles of justice that I have been taught since elementary school,” Juliana said in a statement. “This decision gives full unfettered authority to the legislative and executive branches of government to destroy our country, because we are dealing with a crisis that puts the very existence of our nation in peril.”

Assistant Attorney General Jeffrey Bossert Clark of the Justice Department’s Environment and Natural Resources Division praised the ruling.

“The United States is pleased with the outcome,” Clark said. “As the Court recognized, Article III of the Constitution’s standing requirement is a vital limitation on the power of the federal courts and this suit fell squarely outside the parameters of Article III.”

Both the Obama and Trump administrations have opposed the lawsuit. In a 2018 filing, the Justice Department in a court filing said the challenge was “misguided” and a “radical invasion of the separation of powers.”

Solicitor General Noel Francisco said the lawsuit is “an attempt to redirect federal environmental and energy policies through the courts rather than through the political process, by asserting a new and unsupported fundamental due process right to certain climate conditions.”

In 2016, a federal district judge in Oregon had allowed the lawsuit to proceed.

“Federal courts too often have been cautious and overly deferential in the arena of environmental law, and the world has suffered for it,” Judge Ann Aiken wrote.

“I have no doubt that the right to a climate system capable of sustaining human life is fundamental to a free and ordered society. Just as marriage is the ‘foundation of the family,’ a stable climate system is quite literally the foundation of society, without which there would be neither civilization nor progress,” she added.

In 2018, the Supreme Court, in an unsigned order, rejected a Justice Department attempt to block the lawsuit, saying it had not reached the high bar necessary at the time.

This story has been updated with response from the Justice Department.

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