On the Shadow Docket

In 2015, the young Juliana plaintiffs, with the support of the environmental nonprofit Our Children’s Trust, sued the Obama administration for pursuing policies that advanced fossil fuel expansion while knowing those policies threatened the habitability of the planet.

“For over fifty years, the United States of America has known that Carbon Dioxide (‘CO2’) pollution from burning fossil fuels was causing global warming and dangerous climate change, and that continuing to burn fossil fuels would destabilize the climate system on which present and future generations of our nation depend for their wellbeing and survival,” the original Juliana complaint began. “Defendants also knew the harmful impacts of their actions would significantly endanger Plaintiffs. Despite this knowledge, Defendants continued their policies and practices of allowing the exploitation of fossil fuels.”

Over the course of the next six years, the Obama and Trump administrations fought tooth and nail to delay the case and block it from ever going to trial.

After the case was filed in a federal court in Eugene, Oregon, Obama’s DOJ asked the court to dismiss the case. But in 2016, Aiken denied the government’s request, noting, “To hold otherwise would be to say that the Constitution affords no protection against a government’s knowing decision to poison the air its citizens breathe or the water its citizens drink.”

When Trump took office, his Justice Department repeatedly appealed Aiken’s ruling to the federal circuit courts and the Supreme Court — which handled those appeals on its notorious shadow docket.

The Supreme Court uses the shadow docket for supposed emergency actions, such as death penalty cases, so the matters can avoid the lengthy briefing and public hearing processes of typical Supreme Court cases. Opinions on shadow docket actions are not published, and the justices’ votes are usually not made public. Over the past few years, the court has also leaned on the shadow docket to quietly stop climate policy from taking effect — including Obama’s signature environmental legislation, the Clean Power Plan.

But the Juliana case stands out even among climate litigation: It has faced six rulings on the shadow docket — more than any other federal lawsuit. Those behind the lawsuit say this development illustrates the fossil fuel industry’s capture of American politics.

“The US solicitor general and US Department of Justice have together authorized what appears to be the most exceptional of legal tactics more often in Juliana v. US than in any other case in history,” said Olson. “They have authorized the filing of an apparently unprecedented six petitions for writ of mandamus in Juliana v. US, to keep the twenty-one youth plaintiffs’ evidence of our government’s unconstitutional complicity in causing the climate crisis from ever seeing the light of day.”

The Juliana plaintiffs hoped that with Trump out of the picture, the lawsuit might finally see the light of day. But instead, they found that during settlement negotiations last fall, the Biden administration was just as stubborn in its approach to the case.

“After months of good-faith efforts on the part of the youth plaintiffs to meet with representatives of the Biden administration authorized to reach a meaningful settlement, the plaintiffs saw no reason to continue to pursue settlement discussions until the decision-makers for the federal defendants come to the settlement table in good faith,” Olson’s cocounsel, Philip Gregory, told us.

Now they are awaiting a ruling from Aiken on their motion to proceed to trial.

What the Government Knew

While there has been a substantial uptick in climate-related litigation over the past five years, the Juliana case is different from other US climate lawsuits in at least two substantial ways.

First, while most climate-related litigation targets the fossil fuel industry for misleading the public or causing irreversible harm, this case names the federal government as the perpetrator. (Of course, fossil fuel industry influence plays a key role — just four oil companies spent nearly $375 million lobbying the federal government in the past decade.)

In particular, according to the suit, the federal government has limited the due process rights of its citizens by subsidizing and passing regulations to enable fossil fuel expansion for decades, all while knowing about the potentially catastrophic consequences of that development.

Evidence of what the federal government has known about climate change for the past five decades is detailed in a legal brief written by Gus Speth, an environmental lawyer who cofounded the Natural Resources Defense Council and, before that, led the Council on Environmental Quality under President Jimmy Carter.

Speth’s brief is littered with examples of government and independent scientific reports, dating back from before the Carter administration, detailing the evidence that burning fossil fuels was contributing to global warming and, if not stopped, would have catastrophic consequences.

For example, President Ronald Reagan’s Environmental Protection Agency (EPA) issued two reports on global warming caused by burning fossil fuels. One of the reports — titled “Can We Delay a Greenhouse Warming?” — predicted “an increase in temperatures of 2 degrees celsius by 2040, a temperature increase that, in EPA’s assessment, was guaranteed to produce substantial climatic consequences, including disastrous flooding,” according to Speth’s brief. That report attributed most of the warming to burning fossil fuels and suggested ending coal use by the year 2000.

Reagan, of course, didn’t make much of this warning. His administration worked to dismantle the federal government’s regulatory authority over such matters, including slashing and burning environmental laws and cutting funding for Carter’s solar energy program. But it wasn’t just Reaganites who ignored the warnings of scientists and continued to exacerbate the problem.

“Until Biden, every Democratic administration — not to mention the Republican ones — was enthusiastic about fossil fuels,” Speth told us. “We should never think that during those forty years, from 1980 to 2020, that the Democrats were on the right track in terms of getting out of the fossil fuel business.”

Speth pointed out that Carter had a renewable energy goal and spoke about the need for the United States to transition away from fossil fuels to achieve energy independence amid the 1979 oil crisis. Now, more than forty years later, observers are saying the same thing in the wake of the Russian invasion of Ukraine, which has similarly caused a massive spike in energy prices.

In the Public Trust

The second way the Juliana case stands out is that the plaintiffs are arguing that the federal government’s refusal to address global warming is in violation of the US Constitution. Most climate cases instead argue that environmental threats violate particular legal statutes, such as the Clean Air Act or Endangered Species Act.

The plaintiffs’ unique approach is based on the idea that the government has a more general duty to protect natural resources — a concept that rests on legal principles developed by Mary Wood, a professor at the University of Oregon law school.

Wood has argued that the government has an obligation to ensure a livable planet because of the “public trust doctrine,” a common-law principle that the US Supreme Court declared exists at the state level in a seminal 1892 case involving the Illinois Central Railroad company. The public trust doctrine stipulates that the government is the steward of the nation’s natural resources, upon which life, liberty, and the pursuit of happiness depend.

Invoking the public trust doctrine in this case is a reflection of the gravity of the climate disaster, said Wood.

“There’s no way statutory law alone can solve this climate crisis,” Wood told us. “They’re too narrow. They could do something if they were enforced, but the administration has not enforced them well over time.”

Instead, according to Wood, enshrining the public trust doctrine in environmental case law could form a constitutional basis for requiring the government to rapidly reduce carbon emissions.

As Wood noted in a journal article on the matter, “In this framework, survival resources remain quintessential public property belonging to posterity, and government’s clear responsibility is to manage such ecological wealth strictly for the endurance of society itself, for the benefit of both present and future citizens — not for the advantage of private parties or profiteers who may seek to despoil the trust and appropriate it for their own purposes.”

Baring, the young plaintiff from Fairbanks, is already seeing the impacts of his government violating that public trust. He explained that the Chinook winds, which carry warm air from the mainland United States up north through Canada and Alaska, have become more destructive due to climate change and are increasingly wreaking havoc on his hometown. This winter, the winds caused such dramatic temperature swings in Alaska that the state Department of Transportation referred to the event as “Icemageddon.”

“The temperature can go from below zero to above freezing in a day, and then it will rain, and refreeze overnight,” he said. “There will usually be wind accompanying it, and when the trees are already weighed down by snow, all it needs is a forty-mile-per-hour wind and then trees fall on power lines and roads are impassable. Roofs cave in because of the weight.”

When asked about the future — the “posterity” that Wood deploys in her legal arguments — Baring shifted the conversation back to the present. He graduated from college earlier this month and is returning to Alaska to continue the climate fight.

“There’s so much dualism, especially in my generation, because we don’t have very much power and we are watching everything be gambled away,” he said. “But I always come back to this moment and think, ‘Well, what’s my obligation to change the trajectory, right now?’ This is our generation’s work to do.”