No room for novelty in 'climate kids' and Biden admin negotiation - experts

The word "justice" is seen engraved at the headquarters of the United States Department of Justice (DOJ) in Washington, D.C.
REUTERS/Andrew Kelly

(Reuters) - The Biden administration is unlikely to offer much in the way of concessions to a group of young Americans suing the federal government over actions they say contribute to climate change, experts said on Friday, a day after an Oregon federal judge ordered them to try to settle the case.

U.S. District Judge Ann Aiken in Eugene directed on Thursday attorneys on both sides to work toward settling the pioneering case, but legal experts said the Biden administration may only be willing to reiterate its promises to tackle climate change, a long way from endorsing the youth's claim that the country's energy policy violates their constitutional rights.

President Joe Biden's Department of Justice may "just paper over differences" to hand the petitioners a "symbolic victory," said Rob Percival, a professor of environmental law at the University of Maryland. To ground its position, it may seek a legal opinion from the DOJ's Office of Legal Counsel (OLC), which provides legal interpretations to the executive branch, said Percival.

Aiken asked both sides to hold a first settlement meeting before June 25, according to a court transcript.

Dan Farber, of the University of California Berkeley School of Law, said he is skeptical talks will prove successful.

Although the remedy the plaintiffs seek is limited to a declaratory judgment, Farber said the government would likely be reluctant to sign a deal that recognizes new rights embedded in their claims "because... that might open the door to further litigation seeking broader remedies."

A proposed amended complaint requests that the court declare that a U.S. "national energy system" that destabilizes the climate by enabling the burning of fossil fuels violates the plaintiffs' constitutional rights to life, liberty and property and the public trust doctrine.

The plaintiffs' lawyer, Julia Olson of Our Children's Trust, said: "If there's real movement and the federal government comes to the table with some substantive, meaningful proposals that aren't just symbolic, we're committed to negotiating." Such proposals could, for instance, include a legislating deadline to stop selling internal-combustion vehicles.

A spokeswoman with the DOJ, Danielle Nichols, declined to comment.

Three administrations have now occupied the White House as courts have litigated the case, Juliana v. United States.

It was filed under President Barack Obama in 2015 when the plaintiffs were between the ages of 8 and 19. Last year, under President Donald Trump, it appeared doomed when the 9th U.S. Circuit Court of Appeals ruled that they lacked standing.

But the plaintiffs revived the lawsuit in March by asking Aiken for permission to file their amended complaint to cure those deficiencies. The tweaked complaint leaves out previously proposed remedies, such as asks for a "remedial plan", that the 9th Circuit said exceeded the judicial branch's powers.

Should settlement talks fail, the plaintiffs will push for trial, said Olson.

The case is Juliana, et al v United States of America, et al, U.S. District Court for the District of Oregon, No. 6:15-cv-01517.

For Juliana, et al: Julia Olson of Our Children's Trust

For United States of America, et al: Clare Boronow, U.S. Department of Justice


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Thomson Reuters

New York-based correspondent covering environmental, climate and energy litigation.