Twenty-one young Americans suing the United States government for knowingly exacerbating climate change filed a motion to stop the federal government from leasing out federal land and offshore areas to fossil fuel companies for oil, gas and coal extraction. It also demanded a halt in federal approvals of new fossil fuel infrastructure.
The motion, filed late Thursday with the with the Ninth Circuit Court of Appeals, asked for a temporary injunction to freeze all fossil fuel infrastructure permits while an early appeal of their case, Juliana v. United States, is being considered.
“At a minimum, this injunction would apply to the approximately 100 new fossil fuel infrastructure projects poised for federal permits, including pipelines, export facilities, and coal and liquefied natural gas terminal,” the motion said.
The young plaintiffs asked the court to issue the injunction before March 20, when the government will offer about 78 million acres of unleased areas in federal waters of the Gulf of Mexico.
In the lawsuit, the plaintiffs, who range in age from 11 to 22, allege the U.S. government is depriving them of their constitutional rights to life, liberty, and property with an energy policy that promotes fossil fuel development. The motion addresses the policy of leasing lands for oil and other fossil fuel extraction. Science has shown the burning of fossil fuels is the overwhelming driver of climate change, which leads to sea level rise, more extreme drought, wildfires and storms..
“I used to be able to swim at Kapa‘a Beach near my old house, but there is no beach left due to sea level rise,” said Journey Zephier, 19-year-old plaintiff from Hawaii, in a declaration attached to the motion. “Watching the beaches erode away and disappear brings me deep emotional pain.”
The Department of Justice declined to comment on the motion.
The case, originally filed in 2015, is awaiting a hearing in the Ninth Circuit, which made the unusual move of agreeing to an interlocutory appeal, a rare review of a case before trial. The court agreed in December to hear the Trump administration’s arguments that the case should not proceed and agreed to expedite the process. The Trump administration filed its opening brief on Friday, arguing the young plaintiffs have no Constitutional right to a safe climate. The Juliana plaintiffs have until Feb. 22 to respond.
A host of international experts, including economists, scientists and armed forces officials who worked on the case pro-bono, submitted declarations to the court supporting the new motion.
“An injunction on future leases and mining permits for extracting coal on federal public lands and on future leases for offshore oil and gas exploration and extraction activities, alongside enjoining new fossil fuel infrastructure requiring federal approval will prevent, not cause, economic harm,” said Joseph Stiglitz, an economist and Nobel Prize laureate.
“Defendants control and dictate the U.S. national energy policy in a myriad of ways. For example, they provide billions of dollars annually in direct and indirect subsidies to the fossil fuel industry. The economic impacts of these actions are deleterious to Youth Plaintiffs and the Nation as a whole.”
Lee Gunn, a retired vice-admiral and former Inspector General of the Navy, said climate change is a “threat multiplier” and a “catalyst for conflict” and called it “the most serious national security threat facing our Nation today.”
Julia Olson, executive director and chief legal counsel of Our Children’s Trust and co-counsel for the young plaintiffs, called the government’s development of more fossil fuels “extremely reckless” and causes further harm.
“It is up to the courts to preserve plaintiffs’ rights, and minimize further irreparable harm to these young people, during the pendency of this interlocutory appeal,” Olson said.
The motion mentions 60 new oil and gas pipelines, 32 new liquefied natural gas and coal terminals, and one new deepwater port oil export facility awaiting federal approval among the projects the government is expected to approve. That infrastructure would lock in more use of fossil fuels, contributing to an increase in CO2 pollution, causing even more climate change
Describing his plight to the court, Nick Venner, a 17-year-old plaintiff from Colorado, said carbon emissions trigger frequent wildfires in the summer and poor air quality in the winter in his area. As a result of such unhealthy conditions, he suffers frequent asthma attacks and strong coughs that cause him to miss school.
“I have asthma. The wildfire smoke makes it impossible for me to exercise and sometimes I can’t even go outside at all on particularly poor air quality days,” he said. “I want to emphasize the urgent nature of what we face and what this case is about. It’s irreversible!”
By Karen Savage, Climate Liability News, https://www.climateliabilitynews.org/2019/02/04/government-climate-change-lawsuit-ninth-circuit/
The Trump administration said a group of 21 young people has no right to sue the federal government for endangering their future by exacerbating climate change, according to a Justice Department brief filed to the Ninth Circuit Court of Appeals.
The brief was the first to be filed in a rare interlocutory appeal in the constitutional climate lawsuit, Juliana v. United States. In it, the federal government maintains the young plaintiffs in the case, have “no fundamental constitutional right to a ‘stable climate system.’”
The government further contends that because “global climate change affects everyone in the world,” the plaintiffs’ are not suffering from a legally actionable injury, but from “generalized grievances.”
“Plaintiff’s asserted injuries arise from a diffuse, global phenomenon that affects every other person in their communities, in the United States and throughout the world,” the administration wrote in the brief submitted on Friday. “The federal government’s decisions to ‘allow fossil fuel production, consumption and combustion at [allegedly] dangerous levels’ did not increase the danger to plaintiffs in particular.”
The argument is the latest in the administration’s continued effort to have the lawsuit, initially filed in 2015, thrown out. Its latest appeal won it a highly unusual hearing in front of the Ninth Circuit, which is reviewing the case although it has not yet gone to trial in District Court.
The lawsuit charges that the federal government is violating the plaintiffs’ Constitutional rights to life, liberty and property by promoting an energy system that exacerbates climate change. They also say the government is failing to protect essential public trust resources and are asking for a science-based program to reduce carbon emissions and protect the climate for future generations.
The lawsuit was ordered to trial in December 2016 by U.S. District Court Judge Ann Aiken. The interlocutory appeal, which was granted by a three-judge panel in December, is rare. It allows a higher court to review certain aspects of a case before trial.
The latest brief presented no new arguments by the government, said Michael Gerrard, a professor of environmental and climate change law at Columbia University and chair of the faculty at Columbia’s Earth Institute.
“The DOJ (Department of Justice) has been raising the same arguments multiple times with the District Court, Ninth Circuit and Supreme Court,” Gerrard said, adding that the interlocutory appeal will largely include a rehashing of previous arguments.
Under an expedited briefing schedule ordered by the court last month, the plaintiffs’ response brief is due Feb. 22, with an optional reply brief from the government due March 8.
The federal government said in its latest brief that even if the plaintiffs have been legally harmed, it is not responsible.
“They cannot demonstrate causation because climate change stems from a complex world-spanning web of actions across all fields of human endeavor,” the federal government said in its brief. “Plaintiffs cannot plausibly connect their narrow asserted injuries—like flooding or drought in their neighborhoods—to any particular conduct by the government.”
The young plaintiffs, however, have argued that the particulars of climate science, and the role of the U.S. government in exacerbating climate change, should be argued in court, not in a premature appeal before a trial has been conducted. They plan to call expert climate science witnesses, as well as those who have researched how much of global warming can be attributed to particular countries and industries.
Much of the evidence submitted by the young plaintifss to prove that they are being harmed by climate change comes from the government itself, with extensive research into climate impacts coming from federal agencies (NASA and NOAA, in particular) as well as the release last year of the Fourth National Climate Assessment.
The Trump administration has said that climate change is causing “polar ice melt, earlier annual snow melt, reduced snowpack, sea-level rise, sea temperature increases, threats to coastal cities, adverse impacts to coral reefs and the life they support, more powerful storms and hurricanes, wildfires, drought, floods, and a variety of other impacts.”
In the brief, however, the federal government reiterates its claim that the suit falls under the Administrative Procedures Act (APA), which outlines procedures for judicial review when plaintiffs make claims against a federal agency, and said that the “plaintiffs have refused to comply with the requirements of the APA.”
That premise was rejected in October by Aiken, who said that the APA does not address the plaintiffs’ claims because they seek review of “aggregate action by multiple agencies, something the APA’s judicial review provisions do not address.”
Gerrard said this type of appeal normally takes a year or more to be resolved, but in this instance, the court could reach a decision as early as this summer.
“The expedited briefing schedule signals that the Ninth Circuit wants to decide fairly quickly,” Gerrard said.
Oil Companies Fighting NYC Climate Suit Ignore Liability Issues
Even at this relatively young stage of the latest wave of climate liability suits, the oil industry has gravitated to a strategy: keep the judges thinking about global warming as a global issue (i.e. one they shouldn’t be meddling in) and sidestep the liability question. The industry relied on this thinking again in its brief to the Second Circuit Court of Appeals in New York’s City’s appeal of its dismissed liability case. The strategy makes sense because it already helped sway U.S. District Judge John Keenan in the initial dismissal, and it worked on U.S. District Judge William Alsup in his dismissal of San Francisco and Oakland’s suits. Both of those judges all but ignored the cities’ argument that the industry knowingly sold a dangerous product and should pay for the resulting damages. Instead, both decisions centered on the idea that the case was about curbing carbon emissions and setting national energy policy. In the appeals, the cities are eager to steer the debate back to the companies’ liability, an issue they believe gives them a better chance to win.
By Karen Savage, Climate Liability News
New York City received support from four sources in its climate liability suit against the oil industry: friend-of-the-court briefs filed in favor of its appeal of the case’s recent dismissal by a federal judge.
Filed in the U.S. Court of Appeals for the Second Circuit, one was written by New York Attorney General Barbara Underwood and signed by eight other Democratic state attorneys general, including California’s Xavier Becerra. A coalition of local government associations, which includes the National League of Cities, the U.S. Conference of Mayors and the International Municipal Lawyers Association, submitted a brief.
Another was filed by three environmental justice organizations in New York: the New York City Environmental Justice Alliance (NYC-EJA), UPROSE and THE POINT Community Development Corporation. Catherine Sharkey, a legal scholar who has written extensively on torts, product liability and class actions, also submitted a brief supporting the city’s case.
New York filed suit against Chevron, ConocoPhillips, ExxonMobil, and Royal Dutch Shell in January, seeking billions in damages to cover infrastructure improvements needed to protect New Yorkers from the increasing effects of climate change. The suit includes federal claims of public nuisance, private nuisance and trespass and seeks monetary damages to help pay for the costs of protecting the city.
U.S. District Judge John Keenan dismissed the suit in July, ruling that the city’s claims are covered under federal law, but involve greenhouse gas emissions that cross state lines. That puts them under the jurisdiction of the Clean Air Act, which authorizes the Environmental Protection Agency to regulate greenhouse gas emissions.
The city appealed last week, contending that Keenan “misunderstood the city’s allegations and, on the basis of that misunderstanding, erroneously concluded that various federal law doctrines barred the city’s claims.”
Underwood, who recently filed a lawsuit against Exxon for climate fraud under the state’s investor protection statute, said in the AGs’ brief that Keenan was wrong to dismiss states’ rights to tackle the problem of climate harms. “The district court’s dismissal of the City’s claims reflects its incorrect view that federal law alone governs all actions touching on climate harms,” the brief said. “Courts have consistently held otherwise, recognizing that States have not only critical interests in abating climate change and mitigating climate harms, but also authority to address those interests.
“The district court’s holding here would lead to the extraordinary conclusion that no law at all applies to the environmental harms caused by defendants’ allegedly tortious activities.”
In her brief, Sharkey argued that “the law of nuisance has long covered both private and public disputes that cause injuries, including claims where environmental pollution caused the injuries.”
“A tort claim seeking compensation for climate change-related harms is a special species of that kind of environmental pollution case. But applying nuisance law here is nothing extraordinary. It represents a natural extension of long-standing theoretical and doctrinal principles of tort law,” Sharkey wrote.
In its complaint, the city also argued that if its claims are displaced by the Clean Air Act, it would use state law claims, an argument that Keenan rejected as “illogical.”
The local government associations argue in their brief that until Keenan’s decision—as well as a similar ruling by the federal judge who dismissed similar cases by San Francisco and Oakland—every court that “examined the viability of state-based nuisance and tort claims for climate change concluded that state law claims survived displacement of federal law claims.”
Climate change is not a “uniquely federal interest,” said the local governments arguing that cities are at the forefront of climate action and have used state law to implement solutions to combat the local effects of climate change.
They contend that Keenan’s decision could pose risk to cities across the country by preventing them from using state law claims to pursue remedies for local environmental harms, including climate change.
The local governments support the city’s assertion that Keenan misunderstood New York’s allegations and “on that basis, converted state law claims challenging one set of behaviors—production, marketing, and sale of a product—into a federal law claim challenging another set of behaviors—combustion of the product and emission of greenhouse gases,” they wrote in the brief.
“Even if this court were to accept the district court’s determination that there is a federal common law claim that could apply in this context, its displacement would demand the state law claim be heard on its own terms.”
The environmental justice organizations said local communities are on the frontline of climate change and the most vulnerable are low-income communities and communities of color. Those communities have fewer resources to prepare and recover from climate hazards such as extreme heat, extreme storms, and flooding.
They said Hurricane Sandy “highlights the need for localities to be proactive in adaptation and protection efforts.”
“Fossil fuels have already had a devastating effect on the well-being of New York City,” the organizations said in their brief.
“Sandy demonstrated the uniqueness of New York’s position and its need to fight climate change on a local level with all available resources and tools.”
A significant swath of the electorate that feels the urgency of the moment — that agrees that when it comes to the toxic combination of wealth concentration and money in politics, climate change and government functionality, it’s well past time for nibbling around the edges. They’re not worried about precisely which agency will implement future plans. They’re worried about the existence of a viable future. We must aspire to rebuild the institutions necessary to meet the challenges we face.
The voluminous 627-page report titled Hindu Kush Himalaya Assessment: Climate Change, Sustainability and People put together by the International Centre for Integrated Mountain Development (ICIMOD) states that even in the best-case scenario, the Himalayan mountains will lose more than one-third of their ice by the end of the century. An earlier report was even scarier, it said the Mt Everest region would lose 90% of its ice by 2100.
But that would happen only if global average temperatures can be capped at a 1.5oC increase above pre-industrial levels. Most scientists agree that target is unlikely to be met. If current emission trends continue, the world will actually be hotter by between 4.2-6.5oC by 2100 – in which case two-thirds of Himalayan glaciers will be gone.
Himalayan peaks are warming between 0.3 to 0.7oC faster than the global average, and the loss of Himalayan ice would have devastating consequences for 1.6 billion people living in the mountains and downstream countries. Climate models show that summer flow in the Indus, Ganges, Brahmaputra and their snow-fed tributaries will actually rise till 2050 as the glaciers melt away, but will start decreasing after that because there will be no more ice left. Measurements show that glaciers in the Central and Eastern Himalaya are shrinking at 40cm/year, and some are receding up to 30m/year.
After the controversy surrounding a 2007 report by the Inter-governmental Panel on Climate change (IPCC) that predicted all Himalayan glaciers would be gone by 2035, scientists have been much more careful in making similarly wild predictions. Which is why ICIMOD deployed 210 scientists from 20 countries in this five-year study to assess the latest knowledge from peer-reviewed journal findings.
The new assessment is only slightly less alarming. Although the timeframe has been pushed back to the end of the century there is still very little time to fix the problem even if global carbon emissions are cut in the coming decades. So, we know what the problem is and we know the solution. What are we going to do about it?
ICIMOD Director David Molden has anticipated that question. He said at the report’s launch in Kathmandu on Monday: “This is not just going to be another book on the shelf. We hope to spark policy dialogue by putting climate action on the political agenda by putting the state of the knowledge in one place.”
The assessment is a unique scientific partnership between ICIMOD’s member countries, Afghanistan, Bangladesh, Bhutan, Burma, China, India and Nepal. The Centre is now spearheading an effort to set up a Himalayan Council, much like the Arctic Council which is working on the north polar region.
The concerns of the world’s mountain regions and the amplified impact of global warming on the world’s mountains were mentioned only tangentially in the last two IPCC report. This assessment, in which IPCC scientists also took part, is expected to put the Himalayan region firmly on the global agenda as well.
The hydro-meteorological impact of climate change will go beyond countries like Nepal or Bhutan. Heavily populated and rapidly developing downstream areas of China, Southeast Asia, India, Pakistan, Bangladesh will face severe water crisis. And then there is the indirect impact of the warming on weather and monsoons, as simulations show increased frequency of droughts and floods.
Himalayan countries have always struggled against poverty, marginalisation, state neglect, inequality, discrimination, out-migration, and these problem predate climate change. What global warming does is make all the existing structural problems worse.
For example, the assessment shows that half the children living in Himalayan villages are undernourished. Nepal’s national poverty rate is 23%, but 42% of the country’s mountain dwellers are poor. Because they have fewer choices, the poorest are already beginning to suffer from erratic weather and other impacts of climate change, adding to the push-factors in outmigration.
The report also lays out policy options for countries in the Himalaya, which include increased cross border cooperation among them to battle common threats. One concrete step would be China, Nepal and India cooperating on disaster early warning on future Glacial Lake Outburst Floods (GLOFs). The report also calls for added investment in meeting the UN’s Sustainable Development Goal targets which would build resilience among mountain peoples by giving them more options to adapt.
Two of ICIMOD’s member countries, China and India, are both suffering the impact of climate change along their common mountain frontier. Together, the two giants are the biggest emitters of greenhouses gases in the world. It no longer makes sense now to talk only about adapting to climate change, Himalayan countries need to also start mitigating their carbon emissions and switching to renewables.
They need to do this not just to save the Planet, but to also save their fossil-fuel dependent economies and diversifying their energy mix towards renewables.