Pursuing Climate Justice Through the Courts: What’s Next for Youth Cases Against Governments in the US?

At the Biden administration’s request, a court has terminated a landmark climate lawsuit against the US government. But the young activists are not giving up their fight for justice.

“It’s worth remembering other times in our nation’s history when the political process didn’t work to protect people’s basic human rights. Segregation, women’s rights, equal and adequate public schooling, marriage—time and time again, the political will of powerful majorities was struck down by courts, based on the compelling evidence before them, courageously correcting the injustices thrust on the people. Today, the injustices squarely before this Court are the proven harms of these young people wrought by climate change caused by a fossil fuel-based energy system imposed and perpetuated through the law.”

These were the words spoken one year ago in a Montana courtroom by Nate Bellinger, an attorney with Our Children’s Trust, during his closing argument at the historic trial in the youth climate case Held et al. v. State of Montana. Following a seven-day bench trial in June 2023 that featured detailed testimony from climate scientists, medical professionals, and climate and energy policy experts as well as from the youth plaintiffs, judge Kathy Seeley issued a landmark ruling last August in favor of the young people. She declared that a Montana law prohibiting consideration of greenhouse gas emissions and climate impacts in environmental reviews under the state’s permitting process violated Montana’s constitutional guarantee of the right to a clean and healthful environment, a right that encompasses the climate system. Michael Gerrard, founder and faculty director of the Sabin Center for Climate Change Law at Columbia Law School, called the ruling “the strongest decision on climate change ever issued by any court.”

The ruling is currently under appeal by the state defendants, with a hearing scheduled next month on July 10 before the Montana Supreme Court. If upheld, it will send a strong signal that courts in the US can hold powerful entities accountable for their role in perpetuating the grave injustice that is the climate crisis.

For that to happen, the facts and the evidence – especially the climate science – has to be presented in open court, as it was in the Montana case. Having covered that trial from inside the courtroom, I saw how powerful it was to have climate scientists testify, and how the state defendants did not even try to contest the robust scientific evidence. Climate science, including the latest assessment reports from the Intergovernmental Panel on Climate Change, plays a critical evidentiary role in climate court cases around the globe.

The science is clear that existing government climate policies are wholly insufficient to limiting warming to the 1.5°C target (and even that limit is not considered safe to preserve the climate conditions upon which human civilization developed), and that government plans to expand fossil fuel production do not square with curbing global temperature rise. The United States is the world’s largest historical contributor to planet-warming carbon emissions, and it is set to drive the most new climate pollution from planned oil and gas expansion through 2050 according to an Oil Change International analysis, which dubbed the US “planet wrecker in chief.”

The outsized role of the US in worsening the climate crisis, particularly through systemic policies and practices perpetuating fossil fuels, was going to be exposed in open court at long last as the landmark federal climate lawsuit Juliana et al. v. United States had been cleared for trial by US District Judge Ann Aiken late last year. The case, originally brought in 2015 by 21 young Americans alleging violations of their fundamental rights under the US constitution, was actually supposed to go to trial in 2018. But the Department of Justice (DOJ) under the Trump administration succeeded in derailing the trial through unprecedented emergency petitions, including to the US Supreme Court, and in January 2020 a divided Ninth Circuit appeals court panel decided the case should be dismissed. Aiken, however, revived the case last June when she allowed the plaintiffs to amend or revise their complaint. The amended complaint narrowed the requested relief to only a court declaration that the government’s support of a fossil fuel-based energy system infringes on plaintiffs’ constitutional rights. In a December 29, 2023 opinion rejecting the US’s government bid to toss the amended complaint, Aiken wrote that “it is the responsibility of the judiciary to declare the law that the government may not deprive the People of their Constitutional guarantee of the God-given right to life” and noted that “the climate crisis threatens our ability to survive on planet Earth.”

The Juliana case was back on track to go to trial, but the Department of Justice (now under President Biden) filed yet another emergency petition earlier this year to try to block it, and on May 1 a Ninth Circuit panel granted their request to terminate the case. After nine years and more than 22 attempts from the government – across three presidential administrations – to try to stall or stop the case from reaching trial – it appears to be the end of the road for this lawsuit. Aiken dismissed it as she was expressly ordered to by the Ninth Circuit panel.

“The Juliana plaintiffs have not gotten a fair shake. They’ve had to overcome and go through so many just abuses of procedure and the rule of law, and extraordinary efforts to stop them,” Julia Olson, founder and chief legal counsel at Our Children’s Trust, told me. According to the organization, which represents youth in rights-based climate lawsuits against governments, in the 40,000+ cases in which the US government is a defendant, Juliana was the only one where the DOJ resorted to such extreme legal tactics.

“I’ve litigated for thirty years, and I’ve never seen anything like this,” James May, distinguished professor of law and founder of the Global Environmental Rights Institute at Widener University Delaware Law School, said of the US government’s efforts to evade trial in Juliana.

Olson said the government’s unusual behavior is indicative of the strength of the youths’ case, which could have potentially compelled the government to change course in its energy policy. “It’s because the remedy would be so meaningful that [DOJ] has been fighting the case so hard,” she told me. As Jacob Lebel, one of the 21 youth plaintiffs, said during a “Save Juliana” rally on April 21 in Washington DC, government defendants “know this case has the power to affect real change and they are trying every obscure and last-ditch kitchen sink legal tactic they can to stop us.”

Adah Crandall, an 18-year-old climate activist and organizer with Sunrise Movement, agreed, telling me: “They wouldn’t be going to these great lengths to silence young people if they didn’t know that we were right, and if they weren’t afraid of the power that we’re building.”

Other youth plaintiffs and supporters say the Department of Justice’s actions and the Ninth Circuit panel’s decision in this case are troubling signs for US democracy.

“Every time we get a decision as devastating as this one, I lose more and more hope that my country is as democratic as it says it is,” plaintiff Avery McRae said in a statement. “I have been pleading for my government to hear our case since I was ten years old, and I am now nearly 19. A functioning democracy would not make a child beg for their rights to be protected in the courts, just to be ignored nearly a decade later.”

“I think that the Department of Justice and by extension President Biden are representative of a trend in the erosion of democracy,” Zanagee Artis, co-founder of youth climate justice organization Zero Hour, told me. “These are people who have been waiting nearly a decade to go to trial. Judge Ann Aiken in Oregon has affirmed their right, and that is what a trial should decide, and it is evidence-based and science-based,” he said. “If the Biden administration does support climate action, and if they do support climate science, as they have shown and as they have said, then there is no reason why this case should be blocked from being heard in open court with evidence presented.”

A spokesperson for the US Department of Justice declined to comment when I asked if it had a response to the Ninth Circuit panel’s May 1 decision or if it was pleased with the outcome in the Juliana case.

May said it is an outcome that is “in stark contrast with the way many mature systems around the globe are engaging climate change,” as courts from Germany and the Netherlands to Australia have allowed climate science and evidence to be heard.

“There’s no magic exit simply because a case is about climate change,” Ameya Gehi, a staff attorney at Conservation Law Foundation, told me. “No defendant, whether the federal government or a fossil fuel major, should be able to avoid a lawsuit through these types of repetitious rounds of review that aren’t the normal course of litigation. Courts are supposed to be a forum where citizens can go to enforce their rights, especially when the political branches are not listening to them, which is the case here with the Juliana plaintiffs.”

Not Giving Up

While it may seem that the US government has finally succeeded in shutting down the Juliana v. US climate lawsuit, supporters of the youth plaintiffs say their fight is not over. “We’re not going to give up,” Olson told me. Our Children’s Trust plans on asking the full Ninth Circuit Court of Appeals to review the panel’s decision, a request the court has previously denied in this case. While it may be a long shot, it is something the youth plaintiffs’ attorneys are willing to try again. “That’s the next step, and it’s really important that the full court reviews this,” Olson said. The Juliana plaintiffs’ attorneys will file their request by June 17.

According to May, another option the plaintiffs have is to refile their case. “The plaintiffs can file another case based upon their request for declaratory relief, so it’s not over,” he said.

“There’s a lot of other legal avenues that we can discuss with the Juliana plaintiffs and explore, and we will just need to see what happens,” Olson told me. “None of them are ready to give up.”

In the meantime, Olson’s organization has several youth constitutional climate cases actively pending at the state level. In addition to the Montana case that’s now on appeal, there are currently cases in Utah, Virginia, Alaska, and Hawaii. The Alaska case was just filed two weeks ago, and the Hawaii case that challenges the state’s fossil fuel-dependent transportation system will go to trial later this month (starting on June 24). Our Children’s Trust is also supporting another case at the federal level, Genesis B. v. US Environmental Protection Agency; the youth plaintiffs’ attorneys recently filed an amended complaint in that case after their initial complaint was dismissed.

“We will definitely continue our state strategy and we’re going to be litigating in more states,” Olson said. “But we’re not walking away from the federal courts because the United States government also needs to be held to account.”