Julia Olson, a lawyer representing the young plaintiffs and chief legal counsel for Our Children’s Trust, said they are confident the trial will move forward once the justices receive their response, which is due by Wednesday.
The Supreme Court has recognized in other cases that review of constitutional questions “is better done on a full record where the evidence is presented and weighed,” she said in an email. “This case is about already recognized fundamental rights and children’s rights of equal protection under the law.”
The young people say government officials have known for more than 50 years that carbon pollution from fossil fuels was causing climate change and that policies on oil and gas deprive them of life, liberty and property. They also say the government has failed to protect natural resources as a “public trust” for future generations.
The lawsuit wants a court to order the government to stop permitting and authorizing fossil fuels, quickly phase out carbon dioxide emissions to a certain level by 2100 and develop a national climate recovery plan.
The Trump administration got a temporary reprieve on the case after also asking the 9th U.S. Circuit Court of Appeals, which rejected the request in July.
“The latest attempt to get the U.S. Supreme Court to stop the trial does not appear to be based on any new evidence or arguments. The only new element is an additional Supreme Court justice,” said Melissa Scanlan, a professor at Vermont Law School, who is not involved in the case.
Kavanaugh replaced the more moderate Anthony Kennedy.
Scanlan said the Trump administration is trying to avoid “what they’re expecting to be a 50-day trial focused on climate disruption.” The trial in Eugene, Oregon, was expected to wrap up in January.
The federal government has argued in court filings that the young people don’t have standing to bring the case and the issues should be left to the political branches of government, not the court.
Jeffrey Wood, acting assistant attorney general for the Justice Department’s environment and natural resources division, said officials “firmly believe there is no legal basis for this case to be heard in federal court.”
The lawsuit “is an unconstitutional attempt to use a single court to control the entire nation’s energy and climate policy,” he said, according to prepared remarks for a speech he gave Friday at a conference in San Diego. “It is a matter of separation of powers and preserving the opportunity in our system of government for those policies to be decided by the elected branches, not the courts.”
The lawsuit is part of a nationwide effort led by the Oregon-based nonprofit Our Children’s Trust to force states and the federal government to take action on climate change.
James Hansen, a former top NASA scientist who told the world 30 years ago that global warming had arrived, is also part of the federal case.
District Court Judge Ann Aiken earlier this week dismissed President Donald Trump as a defendant in the case and rejected arguments that the young people can’t bring the case. She said they made specific allegations of “personal injuries caused by human induced climate change,” including extreme weather events in 2016 and 2017 that led to flooding in Louisiana.
Scanlan, the law professor, said the plaintiffs will need to show that the government created a danger, that they knew they created that danger and they “with deliberative indifference” failed to prevent harm.