Our Children’s Trust Climate Case Delay

The case was taken off the court calendar but can still move forward

The Our Children’s Trust constitutional climate lawsuit lingers in limbo.

The scheduled Oct. 29  hearing has been vacated and is no longer on the court calendar as the youth and their attorneys await a decision from the U.S. Supreme Court (and its new justice, Brett Kavanaugh) on if and when the case can move forward in U.S. District Court here in Eugene.

The stay does not necessarily mean the case isn’t going forward, and this is not the first time the case has been brought to the Supreme Court.

On July 30, the Supreme Court unanimously ruled in favor of the 21 youth plaintiffs in Juliana v. United States, denying the Trump administration’s application for stay. The federal government has asked both the Supreme Court and the 9th Circuit Court of Appeals to stop the trial through a “writ of mandamus,” which a seldom-used procedure that lets a higher court to overrule a lower court before a verdict is made.

In their Oct. 22 response to the Trump administration’s most recent application for a stay, Our Children’s Trust says that first, this is not an environmental case, it’s a civil rights case. Second, it is “not a case that hinges on a newly recognized unenumerated fundamental right, as the DOJ misstates,” that the “length of trial and its cost are not enough to show irreparable harm for purposes of a stay and are not a legitimate basis to stop a trial on the constitutional rights of children.” And finally the youth plaintiffs assert, “Contrary to the assertions of the Trump administration, this trial will not intrude on the ability of the executive branch to carry out its functions. There will be no confidential information disclosed in discovery or at the trial.”

According to the Supreme Court’s docket, the U.S. government responded Oct. 24 and essentially reiterated its previous arguments. The removal from the court calendar can be described as a kind of “housekeeping” pending a SCOTUS decision.

Meg Ward of Our Children’s Trust tells EW, “The Supreme Court has not issued a ruling and [Judge Ann] Aiken vacated the trial dates while this is pending before SCOTUS. She will schedule trial quickly after the stay is lifted.”

The constitutional case is based on the public trust doctrine, arguing that if the government is causing harm to the climate system, it needs to be enjoined to stop that harm. The youths, now ages 10 to 21, filed against the federal government in the U.S. District Court for the District of Oregon in 2015.

A rally with the youth plaintiffs will still go forward on Oct. 29.

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