America is out of the Paris Agreement, and although that might be the best option for the future of the Earth, all things considered, it still is a terrible indicator of our prospects for fighting climate change. Currently, cities and states are individually signing back onto the agreement, which might be the best shot of American action, at least for now. But there’s still one small but possible way the U.S. could be forced to take climate change seriously while Trump is in office: if the two dozen kids pushing a landmark environmental lawsuit against the federal government for imperiling their future by causing climate change win their case.
Since Trump took office, Jeff Sessions’ Department of Justice has been trying to squelch the case using the same argument originated by government lawyers under the Obama administration: that climate change simply isn’t the government’s problem. The legal strategy deployed by the new administration hasn’t changed—the same lawyer who represented the government in the Obama years is still arguing the case under Trump. But while the case’s importance has been elevated, the new administration is displaying the same distaste for transparency and casual discarding of legal norms that are becoming sadly standard.
In 2015, two dozen kids sued the U.S. federal government, claiming it violated their civil rights by failing to safeguard a livable Earth for future generations. The suit claimed that the government has known since at least the 1960s that climate change is real, that it’s caused mostly by humans’ use of fossil fuels, and that it deliberately covered up that certainty. When the suit was first filed, it was directed at then-President Barack Obama. And federal prosecutors were still under Obama’s direction when they filed the initial reply to the lawsuit—just one week before the inauguration. The prosecutors’ assessment graphically described the dire reality of climate change and seemed designed to make it extremely hard for the Trump administration to use climate change denial as a defense.
When Donald Trump took office, he automatically became the defendant in the case, adding a new dimension. Observers wondered how an administration led by a man who has called climate change a hoax would respond to the suit, especially given the trap the Obama administration had set up.
At a hearing in April, U.S. Magistrate Judge Thomas Coffin read aloud from the Obama-era government’s answer to the plaintiff’s complaint. He listed a mere fraction of the dozens of claims from the lawsuit that the government, under Obama, had agreed were true. Here is a sampling:
You further admit that: Climate change is damaging human and natural systems, increasing the risk of loss of life, and requiring adaptation on larger and faster scales than current species have successfully achieved in the past, potentially increasing the risk of extinction or severe disruption for many species; that current and projected atmospheric concentrations of greenhouse gases threaten the public health and welfare of current and future generations, and this threat will mount over time as greenhouse gases continue to accumulate in the atmosphere and result in ever greater rates of climate change; that human activity is likely to have been the dominant cause of observed warming since the mid-1900s and that climate change is likely to increase cancer, cardiovascular disease, stroke, toxic exposures, mental health and stress disorders.
Judge Coffin then asked whether the Department of Justice, now under the authority of Sessions and Trump, planned to walk back everything it had admitted in the case under the previous administration.
“Has the government officially retreated from any of these admissions?” the judge asked. “Are these admissions not binding on the government, after having been made in the government’s answer?”
The government’s lawyer in the case, Sean Duffy, the same Department of Justice attorney who signed the answer from which the judge had just read aloud, said he didn’t know.
“The administration certainly could move to amend its position,” Duffy said. “However, we haven’t received guidance from above. So we don’t know yet.”
Trump and Sessions may not have authorized Duffy to share the details of any heart-to-hearts they may have had. Alternatively, Trump and Sessions may not have told Duffy anything at all, and may not even be interested in the legal strategy in this case. Either way, the government’s basic legal strategy is clear: Instead of arguing that climate change doesn’t exist, government lawyers are planning to stay on course with the original plan and argue that the government simply isn’t responsible for protecting its citizens’ future right to a habitable environment, because the Constitution doesn't specifically guarantee that right. Essentially, the argument boils down to admitting that humans might be killing the Earth but insisting that the executive branch of the federal government isn’t legally required to do anything about it.
In court filings, government lawyers argued that there is no constitutional guarantee to a healthy climate and that the separation of powers bars the courts from telling the government how to produce one. Congress, not the courts, should determine the laws governing climate change regulation, the government argued in its defense.
“There is no room in the constitutional structure for a federal court to take on the role of overseeing the propriety of all governmental actions that may be viewed as contributing to the buildup of CO2 in the atmosphere,” the government wrote in a briefing.
At a hearing on Wednesday, government lawyers in the case unveiled a second strategy that echoed the congressional testimony of Attorney General Jeff Sessions just one day earlier: evasion. They refused to answer basic questions of fact and asserted executive privilege over the science the government is using to determine climate change policy.
Julia Olson, the lead lawyer for the plaintiffs, filed 10 requests for admission months ago, in February, to try to get the government to take a firm position on what it thought safe levels of CO2 would be to limit the catastrophic consequences of global warming. The government’s initial answer, the one submitted under Obama, admitted the climate problems we are facing but didn't explain what it considered to be safe levels of carbon dioxide emissions.
Olson wanted to know how the government’s own climate scientists had assessed these questions in briefings to the president. She filed her requests with both the White House and with the Environmental Protection Agency. The Department of Justice has refused to answer any of them, claiming executive privilege allows them to keep secret the facts it uses to determine policy.
"We’re starting to see them exert executive privilege over climate change facts,” Olson said over the phone. “They said they don’t have to disclose whether the statements were true or false because it was protected information. That the president gets to know his position and he doesn’t have to answer questions about it. It’s more of this idea that the president is above the law.”
In Wednesday’s hearing, Duffy agreed to separate the requests Olson had sent to the office of the president from the ones she had sent to the EPA and respond to them separately, because executive privilege “may not apply to the EPA,” Duffy explained.
It sounded like a new application of the mysterious “long-standing Department of Justice policy” Jeff Sessions cited in his refusal to answer questions in a congressional hearing about his conversations with Donald Trump regarding the Russia investigation.
Duffy also tried to dismiss Olson’s concerns, claiming she was asking for too much information that wasn’t essential to arguing the case.
“This discovery circus is an enormous drain on our resources,” Duffy told the judge.
But Judge Coffin echoed Olson’s frustration.
“The main questions are these,” Coffin said. “Is there human-induced climate change happening, and if so, what’s going to be the reasonable probability of habitability of the planet in a number of years and what changes need to be made to keep that from happening?
“I’ve asked several times,” he added. “Does the government admit this is happening? Or does the government deny it? And if so, what evidence does the government plan on presenting at trial? We need some indication from the government as to what it plans to argue.”
Olson asked Judge Coffin to issue an order requiring the government to produce the documents. He has not yet indicated whether he would issue such a ruling.
Perhaps it is heartening that the Trump administration has not shifted tactics in this case to deny climate change altogether. Of course, if it did that, it would have to prove it, and there are already a number of legal precedents that uphold the idea that carbon emissions are harmful to the planet and pose a risk to human health. It’s far easier, it seems, to just evade the question altogether.