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On Monday, U.S. District Court Judge Ann Aiken ruled on the Trump administration's motion for judgment on the pleadings ("MJP") and motion for summary judgment ("MSJ") in the landmark constitutional climate lawsuit Juliana v. United States, filed by 21 young Americans and supported by Our Children's Trust. Judge Aiken's decision, in large part, denied the motions brought by the Trump administration, but granted the motions in part by limiting the scope of the plaintiffs' claims and dismissing the President from the case. As a result, the case will proceed to trial in exactly two weeks on October 29, 2018.
In her 62 page decision, Judge Aiken held as follows:
President Trump is dismissed as a defendant in the case without prejudice. During a July 18 hearing before Judge Aiken, the youth plaintiffs offered to stipulate to dismiss the President without prejudice to later bringing claims against him if necessary to vindicate their rights. At that hearing, the Department of Justice told the Court that they had been instructed by the White House that President Trump could only be dismissed with prejudice, meaning that the youth plaintiffs would be barred from ever bringing claims against him in the future. Judge Aiken's decision adopted the position of the youth plaintiffs, dismissing President Trump without prejudice. Because all of the federal agency defendants remain in the case, the Court found a full remedy could still be awarded without the President as a named defendant.
Plaintiffs have viable legal claims under the Fifth Amendment and Public Trust Doctrine. Judge Aiken reiterated her order of November 10, 2016: "where a complaint alleges knowing governmental action is affirmatively and substantially damaging the climate system in a way that will cause human deaths, shorten human lifespans, result in widespread damage to property, threaten human food sources, and dramatically alter the planet's ecosystem, it states a claim for a due process violation. To hold otherwise would be to say that the Constitution affords no protection against a government's knowing decision to poison the air its citizens breathe or the water its citizens drink."
"It is clearly within a district court's authority to declare a violation of plaintiffs' constitutional rights."
Plaintiffs have "proffered uncontradicted evidence showing that the government has historically known about the dangers of greenhouse gases but has continued to take steps promoting a fossil fuel based energy system, thus increasing greenhouse gas emissions." The Court also cited "the pattern of federally authorized emissions challenged by plaintiffs in this case do make up a significant portion of global emissions." The youth plaintiffs' detailed evidence on government knowledge will be presented at trial.
Plaintiffs' evidence makes clear that their alleged injuries can be redressed through actions by federal defendants. Judge Aiken highlighted plaintiff expert declarations provided by Drs. James Hansen, G. Philip Robertson, Mark Jacobson, James Williams and Joseph Stiglitz making clear that a rapid shift away from fossil fuels is technologically and economically feasible with resources existing today.
Interlocutory review is not certified. Noting that Congress did not intend district courts to certify interlocutory appeals "merely to provide review of difficult rulings in hard cases," Judge Aiken denied defendants' requests to certify for interlocutory appeal made in both the MJP and MSJ. Certifying "a narrow piecemeal appeal on some of these legal issues" would do nothing more than "reshuffle the procedural deck" and fly in the face of the Supreme Court's stated "deeply-held distaste for piecemeal litigation in every instance of temptation."
Plaintiffs' Ninth Amendment claims are dismissed. The Court ruled that youth plaintiffs' stand-alone claim under the Ninth Amendment was not viable as a matter of law and that defendants were entitled to summary judgment on plaintiffs' Ninth Amendment claim.
Children are not a suspect class; nevertheless, strict scrutiny applies to youth plaintiffs' equal protection claim. The Court held that youth plaintiffs are not a "suspect class" under the law. However, because youth plaintiffs' equal protection claim involves a fundamental right, Judge Aiken stated that it "must be evaluated through the lens of strict scrutiny, which would be aided by further development of the factual record." This is the most stringent level of judicial review a court can apply.
Trial in this case will begin as scheduled on October 29, 2018 in Eugene, Oregon.
On Friday, the Trump administration filed a third writ of mandamus petition with the Ninth Circuit Court of Appeals seeking an unprecedented and extraordinarily rare request that the Ninth Circuit issue a writ of mandamus to stay district court proceedings pending the resolution of the Trump administration's forthcoming petition to the United States Supreme Court. The Department of Justice had planned to file a second writ of mandamus petition with the Supreme Court on Wednesday, October 17, but the petition with the Ninth Circuit and the planned petition with the Supreme Court were based on the fact that Judge Aiken had not yet decided the MJP and MSJ pending before her. It is unclear whether the defendants will still move forward with a petition to the Supreme Court this week.
Julia Olson, executive director and chief legal counsel of Our Children's Trust and co-counsel for youth plaintiffs said:
"The District Court continues to provide well-reasoned decisions that narrow and appropriately frame the heart of this case for trial. Today the parties are filing with the court their witness lists and their pretrial memoranda. We are finalizing exhibits for trial and our experts and plaintiffs have booked their tickets to Oregon. We are ready to bring all of the facts forward and prove these youths' case once and for all."
Alex Loznak, 21-year-old plaintiff from Roseburg, Oregon said:
"Judge Aiken's blockbuster decision lays out in extremely precise detail the factual and legal issues in our case which remain to be resolved at trial. These extensive issues include injury in fact and causation. Judge Aiken rightly rejected the government's motion for Summary Judgment because the factual record in this case still requires extensive development at trial before she or any higher court can reach a final decision. Having contributed extensive personal testimony and research to help develop our case's factual record over the past several years, I am confident that our arguments on the remaining disputed issues will ultimately prevail in court. We still need a full and fair trial to prove our case. October 29, here we come!"
Tia Hatton, 21-year-old plaintiff from Bend, Oregon said:
"With Judge Ann Aiken's most recent decision, my fellow plaintiffs and I have our eyes set on one thing: our trial date. Although President Trump is no longer a defendant, we are confident we can get proper relief with the named agencies that remain as defendants. The key components of our case remain, and have withstood the plethora of attempts to dismiss, appeal, and stay our case over the past three years. We - my lawyers, our experts, and my co-plaintiffs and I - are ready to make our case against the U.S. federal government and their deliberate energy policy that cause catastrophic climate change."
Nathan Baring, 18-year-old plaintiff from Fairbanks, Alaska said:
"This ruling from Judge Aiken is an affirmation of the necessity that we stay on track with the timeline that we are working with. She realizes the urgency of the pressing timeline and we are excited to finally get into the courtroom for trial on October 29."
Philip Gregory, of Gregory Law Group and co-counsel for the Youth Plaintiffs, commented:
"In her reasoned order, Judge Aiken dismissed both the President without prejudice and our claim under the Ninth Amendment. The Court also dismissed one part of our equal protection claim ruling that young people and future generations are not a suspect class. In all other respects, Judge Aiken denied the motions brought by the federal government. The case is now fully positioned to commence trial on October 29 and our Youth Plaintiffs look forward to presenting the science to the Court."
Juliana v. United States is not about the government's failure to act on climate. Instead, these young plaintiffs between the ages of 11 and 22, assert that the U.S. government, through its affirmative actions in creating a national energy system that causes climate change, is depriving them of their constitutional rights to life, liberty, and property, and has failed to protect essential public trust resources. The case is one of many related legal actions brought by youth in several states and countries, all supported by Our Children's Trust, and all seeking science-based action by governments to stabilize the climate system.
Counsel for Plaintiffs are Julia Olson, Esq. of Eugene, OR, Philip L. Gregory, Esq. of Gregory Law Group of Redwood City, CA, and Andrea Rodgers, Esq. of Seattle, WA.
Our Children's Trust is a nonprofit organization advocating for urgent emissions reductions on behalf of youth and future generations, who have the most to lose if emissions are not reduced. OCT is spearheading the international human rights and environmental TRUST Campaign to compel governments to safeguard the atmosphere as a "public trust" resource. We use law, film, and media to elevate their compelling voices. Our ultimate goal is for governments to adopt and implement enforceable science-based Climate Recovery Plans with annual emissions reductions to return to an atmospheric carbon dioxide concentration of 350 ppm.
"Carbon capture and storage is a scam, and as these documents show, the call is coming from inside the house," said one campaigner.
As wildfires continued to cause air pollution problems across eastern North America on Thursday, The Narwhalrevealed it obtained documents showing that fossil fuel giant Suncor "provided input on the first draft" of the Canadian government's forthcoming Carbon Management Strategy and a company executive sat on an "obscure" advisory panel.
Highlighting the "important reporting" from The Narwhal's Carl Meyer, Torrance Coste—national campaign director at the Wilderness Committee, a Canadian nonprofit—tweeted that "carbon capture and storage is a scam, and as these documents show, the call is coming from inside the house."
Meyer, an investigative reporter at the nonprofit Canadian media outlet, shared details from a February 2022 briefing note prepared for Natural Resources Canada Deputy Minister John Hannaford—whom Prime Minister Justin Trudeau has just named as clerk of the Privy Council and secretary to the Cabinet, a promotion set to take effect later this month.
The briefing note was developed for a meeting with Jacquie Moore—then Suncor's vice president of external relations and now its top lawyer—and lobbyist Daniel Goodwin that "served as Hannaford's introduction to some Suncor 'key initiatives,' including the company's membership in the 'Oilsands Pathways to Net Zero alliance,' the former name of the Pathways Alliance, which was then a fledgling organization in the oilpatch," Meyer reported.
"The alliance wants to soak up at least $10 billion in public funding to build a mammoth, unprecedented system that would capture carbon from oilsands operations in Alberta and pipe it to an underground reservoir in the province's east," the journalist noted.
\u201cSuncor recently announced it will be cutting 1500+ jobs to ensure profitability. There's no incentive for them to create a climate strategy that limits their own production. All this will likely mean is that our climate strategy will be weaker for their involvement.\u201d— Phillip Meintzer (he/him) (@Phillip Meintzer (he/him)) 1686247028
While serving as Suncor's vice president of regional development, Chris Grant was chosen to be on a "thought leaders' senior reference group" for the government plan—previously known as the Carbon Capture, Utilization, and Storage (CCUS) Strategy—according to the briefing note. Grant has since retired from the Calgary-based energy company.
Although Grant, Suncor, and the Pathways Alliance did not respond to requests for comment, Natural Resources Canada spokesperson Michael MacDonald told The Narwhal that "Suncor's input had no impact whatsoever on the timelines for the development of the strategy," the company was "one of nearly 1,500 organizations and individuals" who weighed in, and "input was solicited from all interested Canadians" online from July 2021 to November 2022.
MacDonald also said that members of the 13-person advisory board, including Grant, "were asked to bring their expertise and experiences to the table as individuals, not as representatives of their respective organizations."
The board included a University of Alberta professor, a clean energy consultant, a Shell Canada manager, the NRG COSIA Carbon XPrize executive director, CEOs of CarbonCure and Svante, president of Wolf Carbon, and vice presidents at BMO's Impact Investment Fund, Carbon Engineering, Cement Association of Canada, International CCS Knowledge Center, and Scotiabank.
"As the entire country burns, one has to wonder: should fossil fuel companies be weighing in on our national climate change policy?"
Meyer reported that the panel—convened by Drew Leyburne, Natural Resources Canada's assistant deputy minister for energy efficiency and technology—met three times between April and July 2021, then corresponded over email the following year. One member said they served as "a sounding board," providing "casual, nonbinding, nonconsensus advice."
The government spokesperson did not say when the plan will be released but said that "it was determined that a more holistic view of carbon management solutions was necessary in this space," given that CCUS "technology is not, on its own, a silver bullet to combat climate change," but it is "one component of an overarching strategy" that will also include nature-based solutions such as tree-planting and wetland restoration along with other technologies like direct air capture.
Some global campaigners and experts have long argued that CCUS is "a false solution" that has become "a dangerous distraction driven by the same big polluters who created the climate emergency," as Common Dreams has reported. Critics have also warned that industries promote "nature-based solutions" so they can "keep burning fossil fuels, mine more of the planet, and increase industrial meat and dairy production."
\u201cas the entire country burns, one has to wonder: should fossil fuel companies be weighing in on our national climate change policy? \n\nhttps://t.co/JCdTLKXxwb\u201d— Michelle Cyca (@Michelle Cyca) 1686235428
The reporting on the Canadian government's evolving carbon plan came as smoke from Canadian wildfires—intensified by global heating largely driven by fossil fuels—disrupted travel and outdoor activities across the U.S. East Coast as officials warned millions of people to stay indoors due to poor air quality.
Fatima Syed, Meyer's colleague at The Narwhal, tweeted that "this story is bonkers when you consider wildfires."
Emma McIntosh, another reporter at the outlet, similarly said that his "scoop feels like a bad joke when you read it under a layer of wildfire smoke: Suncor, a massive oil company, helped the federal government write its climate change strategy. Which is now a year late."
The president "can stop MVP just like he stopped Keystone XL" and "can reclaim his climate legacy by stopping all new fossil fuel projects."
Progressives descended upon the White House on Thursday to demand that U.S. President Joe Biden use his executive authority to cancel the Mountain Valley Pipeline and declare a climate emergency to expedite the end of the fossil fuel era.
Approval of the Mountain Valley Pipeline (MVP) was fast-tracked last week via the debt ceiling agreement that Biden, eschewing his options for unilateral action, forged with House Republicans who took the global economy hostage. The fracked gas development in Appalachia—pushed hard by the GOP and Sen. Joe Manchin (D-W.Va.), a coal profiteer and Congress' top recipient of Big Oil money—is one of several fossil fuel projects that Biden has the power to stop.
While Biden was inside the White House talking with right-wing United Kingdom Prime Minister Rishi Sunak, hundreds of people gathered outside to remind the president that "he can stop MVP just like he stopped Keystone XL." The rally was organized by People vs. Fossil Fuels, a coalition of more than 1,200 organizations. It marks the start of multiple days of action nationwide.
\u201cBREAKING: Frontline communities (@OurWVRivers, @POWHR_Coalition, and more) and allies are rallying for Biden to declare a climate emergency and stop dirty oil and gas projects like the Mountain Valley Pipeline.\u201d— Elise Joshi (@Elise Joshi) 1686250842
Many people wore masks due to the hazardous air quality in Washington, D.C. The East Coast's smoke-filled skies are a direct result of climate change-intensified wildfires now spiraling out of control in Canada—a fact that observers were keen to point to as evidence for why Biden should revoke the permits needed to complete MVP and other planet-heating fossil fuel projects.
\u201cLawmakers in the Senate now can\u2019t see the Washington Monument because of wildfire smoke. Those same lawmakers just voted to expedite a fossil fuel pipeline.\u201d— David Sirota (@David Sirota) 1686228891
\u201cCan\u2019t stop thinking about how Congress just had to prevent a fake and manufactured \u201cdebt ceiling crisis\u201d by fast-tracking fossil fuel projects like the Mountain Valley Pipeline which will only make the very real climate crisis even worse. This is the price of corruption. Look up.\u201d— Warren Gunnels (@Warren Gunnels) 1686191276
When asked by a reporter Wednesday if the coalition planned to cancel Thursday's protest as a public health precaution, Fossil Free Media director Jamie Henn said, "No, this is exactly why we have to take these sorts of actions." On Thursday, he added that "we're not going to sit idle as the world burns."
A separate rally scheduled for Thursday in New York City had to be canceled, however, because the record-setting air pollution blanketing the country's most populous metropolitan area in an apocalyptic orange haze poses too great a risk.
"We're fighting for a future," West Virginia resident Maury Johnson said during the demonstration in the nation's capital. "Not one that's filled with smoke."
Climate justice advocates were joined outside the White House by Rep. Rashida Tlaib (D-Mich.). Noting that MVP has nothing to do with raising the nation's debt limit—an arbitrary and arguably unconstitutional cap on federal borrowing the GOP has weaponized to impose its agenda on multiple occasions—the progressive lawmaker denounced the inclusion of the project's approval in the debt ceiling deal.
\u201c\ud83d\udd25\ud83d\udd25\ud83d\udd25\u201cWe have the right to breathe clean air. Do you know what 1 asthma attack can do to a whole family? Mountain Valley Pipeline should never have been part of the debt ceiling deal. I call bullshit!\u201d @RepRashida \ud83d\udd25\ud83d\udd25\ud83d\udd25 @POTUS #StopMVP #EndtheEra #ClimateEmergency @FightFossils\u201d— Ben Goloff (@Ben Goloff) 1686249477
As The Guardianreported Thursday, "The Mountain Valley Pipeline project has been enmeshed in legal challenges for years due to opposition from grassroots groups and landowners but the deal passed by Congress to raise the U.S. debt ceiling, signed by Biden over the weekend, singles out the pipeline as being 'required in the national interest' and therefore should be allowed to proceed, shielded from any future judicial review."
The approval of MVP comes just months after Biden greenlighted ConocoPhillips' massive Willow oil drilling project in the Alaskan Arctic. Additionally, despite possessing the executive authority to cancel nearly two dozen proposed fracked gas export projects that threaten to generate heat-trapping emissions equivalent to roughly 400 new coal-fired power plants, the Biden administration has moved to increase fracked gas export capacity, especially in the U.S. Gulf Coast, since Russia invaded Ukraine last February. The president has also rubber-stamped more permits for fossil fuel extraction on public lands and waters than his White House predecessor.
The Biden administration has done all of those things despite mounting evidence of the climate emergency's worsening toll and ample warnings from scientists about the incompatibility of expanding fossil fuels and preserving a livable planet. United Nations Secretary-General António Guterres recently told Biden and other wealthy country officials in no uncertain terms that their current climate policies amount to a civilizational "death sentence."
People vs. Fossil Fuels has argued that the president "can reclaim his climate legacy by stopping all new fossil fuel projects."
Thursday's rally outside the White House marks the beginning of what the coalition called "a stampede of distributed actions across the country" from June 8-11.
Participants have four main demands for Biden:
As another alliance of progressive advocacy groups has explained: "The president has a long list of actions that he could take or instruct his agencies to take, ranging from stopping fossil fuel infrastructure approvals to instructing the [U.S. Environmental Protection Agency] to issue a stringent pollution prevention rule for the oil and gas sector. Declaring a climate emergency under the National Emergencies Act would unlock additional statutory powers, including the ability to halt crude oil exports and directing funds to build resilient, distributed renewable energy."
In a statement this week, Zero Hour organizing director Magnolia Mead said that "young people are angry and fed up with watching President Biden cave to the fossil fuel industry time and time again."
"We need an immediate transition to renewable energy to slow the climate crisis, and that's impossible while our president is still approving massive fossil fuel expansion," said Mead. "If President Biden cares at all for future generations and frontline communities, he must choose to end the era of fossil fuels."
"If Biden lets this case proceed," said one advocate, "future administrations will surely use the precedent of the Assange prosecution... to go after journalists they don't like."
Press freedom groups on Thursday said that following the United Kingdom High Court's rejection of WikiLeaks founder Julian Assange's appeal against his extradition order to the United States, U.S. President Joe Biden has a choice to make: continue with the federal case against the publisher or stand on the side of journalists everywhere and drop the charges against Assange.
High Court Judge Jonathan Swift on Tuesday handed down the decision rejecting Assange's appeal of an extradition order that was signed a year ago by U.K. Home Secretary Priti Patel, leaving Assange's legal team with less than a week to submit another appeal to a panel of two judges.
The judges could convene a public hearing on the case of Assange, who has been charged in the U.S. with violating the 1917 Espionage Act for publishing classified military documents that revealed the United States' alleged war crimes in Iraq and Afghanistan.
Press freedom and human rights groups have maintained that Assange has been prosecuted for publicizing government information just as newspapers routinely do and have demanded that the White House drop the charges.
"The idea of Assange or anyone being tried in a U.S. court for obtaining and publishing confidential documents the same way investigative reporters do every day should be terrifying to all Americans," said Seth Stern, director of advocacy for Freedom of the Press Foundation. "It's time for Biden to drop this case and show the world he's serious about press freedom."
\u201cFPF's statement on the rejection of Julian Assange\u2019s extradition appeal.\nhttps://t.co/sbPqRfVH8j\u201d— Freedom of the Press (@Freedom of the Press) 1686247315
The Daily Mail reported Thursday that the U.K. Home Office is currently preparing paperwork to rapidly extradite Assange and that he could be sent to the U.S. "in the next few weeks."
Human rights lawyer Stella Assange, who is married to the WikiLeaks publisher, said Assange will "make a renewed application for appeal to the High Court."
"We remain optimistic that we will prevail and that Julian will not be extradited to the United States where he faces charges that could result in him spending the rest of his life in a maximum security prison for publishing true information that revealed war crimes committed by the U.S. government," she said.
Assange's extradition was originally blocked in 2021 when a Westminster Magistrate Court judge ruled that he should not be sent to the U.S. because of the risk that being held in an American maximum security prison would pose to Assange's mental health.
The High Court overturned that ruling after the U.S. claimed Assange would not be held in highly restrictive prison conditions.
Christophe Deloire, secretary-general of Reporters Without Borders (RSF), denounced the continued prosecution of Assange as "judicial harassment" and "an attack on global media freedom."
\u201cPresident @JoeBiden, it is now more urgent than ever to put an end to the judicial harassment of Julian Assange and bring the case against him to a close once and for all. Pursuing his extradition and prosecution\u00a0is an attack on global media freedom. It's time to #FreeAssange!\u2026\u201d— Christophe Deloire (@Christophe Deloire) 1686239616
Along with the possibility of a ruling by the High Court in Assange's favor, the European Court of Human Rights could block the extradition following the journalist's appeal to the court last year.
Rebecca Vincent, director of campaigns for RSF, called on Biden to take action instead of leaving it up to British and European judges, in order to end a case that could "land Julian Assange in prison for the rest of his life and permanently impact the climate for journalism around the world."
"The historical weight of what happens next cannot be overstated," said Vincent. "It is time to put a stop to this relentless targeting of Assange and act instead to protect journalism and press freedom. Our call on President Biden is now more urgent than ever: Drop these charges, close the case against Assange, and allow for his release without further delay."