The Supreme Court stepped in to stall a climate lawsuit. That’s really weird.

One of the biggest legal battles over climate change is now in limbo pending a decision from the Supreme Court’s chief justice, who last week took the odd step of halting the lawsuit to consider a stay.

The suit, Juliana v. US, also known as the children’s climate lawsuit, was first filed in 2015 and now includes 21 plaintiffs between the ages of 11 and 22, including Sophie Kivlehan, 20, who happens to be the granddaughter of the famed climate scientist James Hansen. The case argues that the US government undertook policies that contributed to climate change, thereby causing irreparable harm to young people and denying them a safe climate. As relief, they want the government to pursue policies to keep warming in check.

The trial was supposed to begin at the United States District Court in Oregon on October 29. But on Thursday, the defendant, the US government, asked for a stay of the case, arguing the costs of litigation would put an undue burden on it. Supreme Court Chief Justice John Roberts granted a temporary stay and halted discovery until Wednesday to allow the plaintiffs to respond.

Chris Geidner✔@chrisgeidner

 · Oct 19, 2018

Well, it’s 5:45p on Friday, and still no word from #SCOTUS on DOJ’s deposition/discovery stay request in the Census citizenship question case (a temporary stay already is in place while the court considers the request) or on the kids’ climate change trial/discovery stay request.

Chris Geidner✔@chrisgeidner

BREAKING: Chief Justice John Roberts temporarily halts discovery and the upcoming trial in the kids’ climate change case, pending a response to DOJ’s stay request, which is due by 3p Wednesday.

3:44 PM - Oct 19, 2018

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Working over the weekend, the children and their lawyers filed a 103-page brief on Monday, “in hopes of receiving a decision from the Chief Justice before the week’s end.”

Now the case is back at the Supreme Court, and what happens next is unclear, including whether the other justices on the bench will weigh in.

And again, it is extremely unusual for the Supreme Court to step in to block a legal proceeding in a lower court. But then this is an unusual case.

The plaintiffs essentially are arguing that a safe climate is a civil right, so the implications for climate change policy are huge. Though the case is in uncharted legal territory, it has survived several legal challenges and motions to dismiss, and lower federal courts have allowed it to proceed.

Incidentally, one of the other few times the Supreme Court weighed in on a lower court case was also related to climate change. In 2016, the court stayed the Obama administration’s Clean Power Plan to limit greenhouse gases from power plants, pending ongoing lawsuits from states suing to block the rule from going into effect.

Ann Carlson, a professor of environmental law at the University of California Los Angeles, said that the Supreme Court stepping in on a case like this strongly suggests there’s something there that piques the court’s interest.

“It’s certainly a signal that the court is uncomfortable with the underlying legal theory of the Juliana case,” Carlson said.

The federal government, under Presidents Barack Obama and Donald Trump, has argued the case has no merit and repeatedly sought to have it dismissed. Jeffrey Wood, a political appointee at the Department of Justice handling environmental cases, told a law conference last week that the right to a safe climate “simply does not exist” and that the Juliana lawsuit “has no legal basis.”

For climate activists old and young, the courts have become a last resort for pushing governments and businesses to reduce greenhouse gas emissions, especially with an executive branch that’s still denying climate change exists and a gridlocked Congress.

There are also several ongoing climate change lawsuits filed by cities, counties, and a state against oil companies, though the pivot points are different. The local governments are citing nuisance statutes and seeking money from oil companies to pay for damages caused by climate change, whereas the children’s case is trying to force the government to enact policies to curb greenhouse gas emissions.

But the prospects for the children’s climate lawsuit to succeed appear dim, first because the courts tend to give wide latitude to the executive branch in these cases, and second because the Supreme Court’s newest Justice Brett Kavanaugh is much more skeptical of environmental regulations than his predecessor.

“This is just the beginning of what we’re likely to see from a Court that doesn’t have Justice Kennedy on it anymore,” Carlson said.

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