By Michael Burger and Jessica Wentz
In Juliana v. United States, twenty-one individual youth plaintiffs have filed a lawsuit in federal district court in Oregon against the United States, the president, and various other federal officials and agencies. They are claiming that the “nation’s climate system” is critical to their rights to life, liberty, and property; that the federal government has violated their substantive due process rights by allowing fossil fuel production, consumption, and combustion at “dangerous levels;” and that the government has failed to fulfill its obligations under the public trust doctrine. As a remedy, the plaintiffs asked the court to compel the government to develop a plan to reduce carbon dioxide (CO2) emissions so that atmospheric CO2 concentrations will be no greater than 350 parts per million by 2100—a science-based target consistent with the goal of limiting global warming to 1.5 degrees C.
The plaintiffs’ attorneys at Our Children’s Trust have dubbed their case the “trial of the century.” The U.S. Department of Justice, under both the Obama and Trump administrations, has argued that no trial should take place at all. The district court denied the defendants’ motion to dismiss, finding that the plaintiffs had raised colorable constitutional claims; after initial discovery had been conducted, the court denied (in significant part) defendants’ motions for summary judgment and judgment on the pleadings, affirming the earlier decision that plaintiffs raised valid claims and finding genuine issues of material fact that warrant a trial. But, after repeated attempts by the government to gain interlocutory appeal at the 9th Circuit and the Supreme Court, the district court’s decisions denying the U.S. government’s dispositive motions will now be reviewed by the 9th Circuit. It is possible that the trial will never happen.
And so the question lingers: What would the “trial of the century” look like? What are the key scientific questions that the parties would seek to answer? Where would the points of agreement and contention lie? And how would all of this factor into determinations on the plaintiffs’ standing to bring their suit, and the nature and extent of the government’s responsibility? As it turns out, the two sides have produced a documentary preview of the potential answer. In preparation for trial, the plaintiffs submitted over one thousand pages of expert reports detailing the fundamental science of climate change, observed and projected impacts, and the ways in which the U.S. government and the fossil fuel industry have contributed to the problem. In response, the defendants submitted hundreds of pages of their own expert reports contesting the reliability, soundness and validity of the plaintiffs’ submissions. And in response to that, the plaintiffs submitted a Notice of Supplemental Disputed Facts to the court, arguing that between these two sets of documents various questions of material fact were in dispute, requiring a trial. With all of that in hand, the district court thought, and still thinks, a trial is warranted. In the remainder of this post, we summarize the key proffers and points of contention, providing a glimpse of at least part of what these, or other, plaintiffs’ day in court might eventually entail.