Will Kids’ Climate Lawsuit Get to Trial?

based a pivotal appeals court hearing on Tuesday. During the hour long arguments, three judges from the Ninth Circuit Court of Appeals grapple with the question of whether climate change violates the constitutional rights of the young people who sued the US government over the use of fossil fuels. Joining me, as Charles Warren, head of the environmental practice at Kramer Levin, Chuck tell us, what makes the arguments of these young

plaintiff's novel? Well, June, this is really novel, and that there's never been an argument put forth that there's a constitutional right to be protected from fossil few rules in effect, and what they're saying here is that they would like the court defined that this is a violation of their Fifth Amendment rights to life, liberty, and property, and there's never been anything like that in the environmental area, since most lawsuits and rights are vindicated either under federal or

state laws or common laws like news trespass and things like that, But no court has ever said that there's a constitutional right to be protected against fossil fuels in effects, and judges are often uncomfortable with breaking new legal ground. In this case, Judge Andrew Herwitt said to the plaintiff's attorney, you're asking us to do a lot of new stuff, aren't you. But why not let the case go to trial where all the evidence can be presented and see

if the plaintiffs can meet their burden. I think that's something that the district judge basically said ought to happen, and I think that there's something to be said for that, and see what kind of evidence that they can present.

Although there are threshold legal issues that I think the court's grappling with as to whether there is really a constitutional right here because in other cases not quite the same as this, But when people have tried to attack greenhouse gases or air pollution using other theories behind, you know, going beyond the statutory framework, the courts basically said, no, you have to get relief using the Clean Air Act or something like that. So I think that's a hurdle

that they're going to have to get over. But there's a possibility they could get over that and at least go to trial and see what they can develop through presenting evidence. The government called the case a dagger at the separation of powers. Is that one of the government's best arguments and the toughest hurdles for the plaintiffs whether the courts can even step in. I think that is

a problem. I think that is a problem for the plane is because what they're based stically saying is that the executive branch, through the laws that have been passed, really governs this whole area. And now you're saying that the courts can step in and vindicate a right that goes beyond that, and that would be a big change. And so I do think that's a big hurdle that the planeffs have to overcome. Another hurdle seems to be and the judges were asking a lot of questions about

what type of remedy could a court put in place. Well, they're asking for the court to basically order the government to develop plans that would reduce dependence on greenhouse gases, and that would be something where courts don't often come up with plans like that, where they specifically order a government agency to come up with ways to reduce let's say, air pollution or water pollution or something like that, because

that's what you have a status story scheme for. And you know, if they're violating the stat story scheme, that's one thing, but it's hard to say, now you must come up with a whole new program. And that's what I think the government is trying to get at and saying, you really can't do that as a court. So there is certainly some president for that. So this is the second time that the Ninth Circuit has considered this case. It was just ten days away from trial in October

when the Supreme Court paused it. So will any decision here likely be appealed to the Supreme Court? And how is it likely to fare there? Yes, I believe that any decision here would likely go to the Supreme Court, particularly if the government loses, they'll absolutely take it to the Supreme Court. And I would think it would not farewell in the Supreme Court given the composition the court and given the fact that this is a novel legal theory.

I wouldn't expect this court to really embrace it at all. Have there been any environmental decisions this term that showed the Court changing the way it sees environmental cases. No, not particularly, not really, They've always been tough on environmental This court has been tough on environment Yeah, this this

court has been. And probably the next big case it will get up there is going to be when the Government comes out soon with the new clean power plant revisions, which are going to cut back significantly and the previous regulations, and that will probably go up to the Supreme Court.

Now I'm wondering, you know, the Court is not supposed to be influenced by what's happening outside, but in this case, because there's so much talk about climate change recently, does that affect the way the Court is thinking that Congress is not going to do anything and the President is not going to do anything, so maybe we do have to step in. Not Usually, most courts are generally conservative institutions,

and it's rare that they step in. And this would require a big step in something like this, certainly, And I think it would be whether or not they would uphold or overturn the regulations that come out under the Clean Power Plan. That would be that's something that's sort of goes in the normal course. But something like this, I think is a very big step, and I don't think that the Core would be necessarily influenced by what's happening outside. Chuck, what happened the last time this went

to the Ninth Circuit? Why is it back? Yeah? The Ninth Circuit basically sent it back and they wanted the court to develop you some further information and material. That's that's what happened. And now it's been appealed again the court, you know, after they lower court went through a process and basically said the case could proceed again. Now back at the Ninth Circuit. Well, it's been fought by the Trump administration, the Obama administration, and they keep going. Thanks

so much, Chuck. That's Charles Warren. He's head of the environmental practice at Kramer Levin. Thanks for listening to the Bloomberg Law Podcast. You can subscribe and listen to the show on Apple Podcasts, SoundCloud, and on Bloomberg dot com slash podcast. I'm June Grasso. This is Bloomberg