Hundreds of kids rallied at Portland City Hall, calling for more government action on climate change, earlier this year.
Hundreds of kids rallied at Portland City Hall, calling for more government action on climate change, earlier this year. MERCURY STAFF

The fate of a youth-led federal lawsuit that could have major implications for climate change and the fossil fuel industry is being decided by an appeals court in Portland this week.

The lawsuit in question, Juliana v. United States, was originally filed in Oregon in 2015. In it, 21 young people posit that the United States’ lax environmental policies have failed to mitigate the devastating effects of climate change, and therefore the government is putting young people’s constitutional right to life, liberty, property, and the pursuit of happiness at risk. The case is named for Kelsey Juliana, a Eugene, Oregon native and current University of Oregon student who co-filed the lawsuit at age 15.

It’s been called a “novel” legal approach to combatting climate change—and one that is “asking us [the judicial system] to do a lot of new stuff,” as Judge Andrew D. Hurwitz, who sits on the 9th Circuit Court of Appeals, put it bluntly on Tuesday.

On Tuesday afternoon, the three-judge appeals court met at the Mark O. Hatfield courthouse in downtown Portland to hear arguments on whether or not the case should proceed to a trial. The judges have yet to issue a decision on the case.

Juliana v. United States has been working its way through the US court system since 2015, and has withstood attempts by both the Obama and Trump administrations and the fossil fuel industry to have it dismissed. In 2018, the US Supreme Court declined to dismiss the case, so the Trump Administration petitioned the 9th Circuit Court of Appeals to consider whether the case should proceed to trial.

Earlier this year, the youth plaintiffs in the case also filed a preliminary injunction with the 9th Circuit Court of Appeals, calling for a court order that would prevent the federal government from issuing any permits or approvals that would allow for coal mining on public land, offshore oil and gas extraction, or new fossil fuel infrastructure (like pipelines), until the case concludes.

These were the two questions in court on Tuesday: Does Juliana v. United States have enough legal footing to go to trial? And if the case does proceed, should the federal government be halted from engaging in climate change-causing activity in the meantime?

The three judges—Hurwitz, Mary H. Murguia, and Josephine Staton—heard arguments from the federal government first. Jeffrey Clark, an assistant attorney general with the US Department of Justice, argued that Juliana v. US isn’t legally tenable for three reasons:

1. That the lawsuit attempts to create new rights not found in the constitution by arguing that young people have a right to a healthy environment.

2. That a lawsuit with such wide-reaching implications shouldn’t be heard by a single circuit court judge when it goes to court.

3. That the case is “an attempt to constitutionalize administrative law”—in other words, the lawsuit seeks to use the judicial branch to achieve ends that ought to be handled by government agencies like the Environmental Protection Agency.

Clark also suggested that allowing the case to move forward could have “earth-shattering consequences,” and that the injunction on fossil fuel infrastructure could place an “untenable burden” on people across the country.

The 21 youth plaintiffs were represented by Julia Olson, the executive director and chief legal counsel for environmental justice organization Our Children’s Trust. Olson’s main argument rested on the idea that the constitutional rights at stake in Juliana v. US have already been recognized in the 5th Amendment, which states that no person can be denied “life, liberty, or property” without due process.

Olson also argued that climate change was a “state-created danger,” because the federal government “subsidizes and promotes” the fossil fuel industry. She added that while young people are not a federally protected class, the Supreme Court has set the precedent that when the federal government values the interests of adults over those of children, that can amount to discrimination. By allowing climate change to progress, Olson reasoned, the government had valued adults over younger generations who will have to live with the consequences.

The youth plaintiffs in Juliana v. United States are not seeking financial damages. The judges questioned Olson about what the desired outcome of the lawsuit would be: If her side won, what would the federal government have to do differently?

Olson pointed to cases like Brown v. Board of Education, in which the Supreme Court issued a decree forcing the federal government to develop new policy and take action to integrate the nation’s schools. A similar decree related to curbing climate change and defunding the fossil fuel industry could be issued if Juliana v. United States succeeds, Olson said.

Support The Portland Mercury

Both the courtroom and an overflow viewing room were packed for Tuesday afternoon’s hearing, with many teenagers and elementary school-aged kids filling the seats. Kids in the overflow room applauded after Olson concluded her arguments.

All three judges acknowledged that Juliana v. United States is an unprecedented lawsuit, and seemed to be on the fence about whether it would be appropriate for it to proceed. While questioning Olson, Murguia said she was “trying to figure out if we’ve ever done anything to this scale, to this proportion.” Hurwitz said that while he thought it was possible the government’s inaction on climate change “may even rise to the issue of criminal neglect,” he wasn’t sure if it was the judicial branch’s place to force the executive branch into action.

The appeals court is expected to issue a decision later this week.