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June 4, 2023

The Children Will Get Their Climate Trial … Or Will They? 

Mark Trexler

I'm not talking about the Montana trial scheduled to get underway in a couple of weeks, I'm talking about the Oregon case that has been slogging its way through the courts for so many years. The Judge in that case, after being ordered by the Ninth Circuit to dismiss the case several years ago, has decided to allow the Our Children's Trust plaintiffs to amend their original complaint in ways that could allow the case to go to trial.

BUT, while the ruling is being celebrated in climate circles, and while Judge Aiken bent over backward to breathe new life into the case, her ruling sets the stage for a disastrous Supreme Court ruling. Here's the (very) short version:

1. The case was originally ordered dismissed for lack of "redressability," meaning that, regardless of the harms posed, the court doesn't have it within its jurisdiction to order the actions needed to substantially mitigate climate change. Redressability is an element of "standing," which is key to being able to bring a case to court in the first place.

2. Judge Aiken's new ruling relies on a 2021 Supreme Court case, Uzuegbunam v Preczewski, which held that the "redressability" criterion could be satisfied by outcomes far short of what has historically been meant by the term. In other words, as Aiken concludes, a court decision declaring climate change a violation of childrens' constitutional rights could satisfy "redressability" simply by having set the stage for subsequent (non-judicial) actions that could mitigate climate change. Just to be clear, this would be HUGE (!!!) when it comes to facilitating potential judicial rulings on climate change.

3. Sounds great ... but legal experts have pointed out that Supreme Court rulings are sometimes inconsistent on standing. There is no reason to assume that this interpretation of redressability will be found to apply to the Our Children's Trust case if the question makes it to the Supreme Court prior to any trial getting underway. Note that Justice Clarence Thomas, certainly no friend of climate action, wrote Uzuegbunam!

4. While a trial in the Our Children's Trust lawsuit is far from guaranteed, the bigger question (and risk) is what else the Supreme Court might say if the case gets there, even if it's just an unpublished decision (see Stephen Vladeck's excellent new book, The Shadow Docket: How the Supreme Court Uses Stealth Rulings to Amass Power and Undermine the Republic). When the Ninth Circuit originally ordered the case dismissed, legal experts noted that keeping the case from getting to the Supreme Court might have been the best possible outcome. And today's Supreme Court is FAR more likely to use any opportunity it has to put a bullet in the head of judicial action on climate change.

Judge Aiken clearly wants the Our Children's Trust case to get its day in court, but for the prospects of climate progress it's a great example of "be careful what you ask for." Playing Russian Roulette can end badly.

Featured image by CQF-avocat from Pixabay



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Mark Trexler


Mark has more than 30 years of regulatory and energy policy experience. He has advised clients around the world on climate change risk and risk management. He is widely published on business risk management topics surrounding climate change, including in the design and deployment of carbon markets. Mark has served as a lead author for the IPCC and holds advanced degrees from the University of California at Berkeley.

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