Sen. Ron Wyden (D-OR) high-fives one of the plaintiffs in Our Children's Trust's federal suit in April, 2017. (Photo by John Light/BillMoyers.com)
This post has been updated.
An industry group representing fossil fuel companies is looking to pull out of a case in which 21 young Americans, ranging in age from 9 to 21, are suing the federal government to force it to take action on climate change.
[Update, Friday 5/26/2017: All three industry groups involved in the suit — the American Petroleum Institute, the American Fuel and Petrochemical Manufacturers and NAM — are now seeking to withdraw.]
The move by the National Association of Manufacturers (NAM) comes days before the group would have to file documents clarifying its position on climate change.
The young plaintiffs, represented by the nonprofit Our Children’s Trust, had initially filed their suit against the Obama administration. In 2015, the American Petroleum Institute, the American Fuel and Petrochemical Manufacturers and NAM joined the suit as intervenor-defendants. That put lawyers representing the fossil fuel industry alongside attorneys from the Obama administration — and now, the Trump administration — in opposing Our Children’s Trust’s push for climate action.
The suit is based on the idea that the government and the fossil fuel industry have known about climate change for decades, but have continued to take actions that fuel it. The lawyers for Our Children’s Trust argue that this has not only imperiled the lives of young Americans and future generations, but it also has infringed on their constitutional rights.
The administration and industry groups sought to get the case thrown out, but in November 2016, Judge Ann Aiken allowed the case to go forward, writing, “This action is of a different order than the typical environmental case. It alleges that defendants’ actions and inactions — whether or not they violate any specific statutory duty — have so profoundly damaged our home planet that they threaten plaintiffs’ fundamental constitutional rights to life and liberty.”
National Assn of Manufacturers wants out of Juliana v. US climate case. They may well want to avoid discovery of their & members' documents. https://t.co/sjyEb0lOyN
— Michael Gerrard (@MichaelGerrard) May 23, 2017
Now the Trump administration is trying to get the case thrown out — another indication that both industry groups and the administration may be growing increasingly uneasy about a lawsuit that many in the environmental law community are watching closely. In court proceedings last week, an attorney for the industry groups said that all three — not just NAM — were considering pulling out of the suit.
For Julia Olson, the lead attorney representing the plaintiffs, NAM’s decision is aimed at avoiding discovery. “They’ve made clear that they do not want to respond to any of our discovery requests,” she tells BillMoyers.com. “We’ve asked them for documents, we’ve asked them for admissions, and next we are going to be taking depositions of people in the association and potentially their members…. We’ve been very forthcoming about discovery plans.”
NAM did not immediately respond to BillMoyers.com’s request for comment. But in a statement to The Washington Post, the group’s senior vice president and general counsel, Linda Kelly, said NAM is pulling out simply because it is confident the Trump administration will defend the interests of the fossil fuel companies by vigorously fighting the lawsuit — something the industry groups were not confident the Obama administration would do.
“After every election, the NAM evaluates what cases we need to be involved in to protect manufacturers’ interests. As the dynamics have changed over the last several months, we no longer feel that our participation in this case is needed to safeguard industry and our workers,” Kelly told The Post.
The judge will have to approve NAM’s request to pull out. Olson is okay with that, but says she thinks NAM and any other groups that pull out should pay the young plaintiff’s legal costs. “To us, all three of them should leave, and they should leave with prejudice, which would mean they cannot come back and participate in the case,” she said. “And we believe they should have to pay the plaintiffs’ cost for litigating against them for 18 months, and winning against them for 18 months. Now that they’re in the hot seat, they don’t want to play anymore.”
NAM’s decision comes as industry groups are deciding whether to admit to the facts of the case, as asserted by the young plaintiffs. By the end of the day on Thursday, May 25, groups will have to state whether they agree with 98 statements that undergird the case — many of which deal with climate science, such as “greenhouse-gas pollution endangers the public health and welfare of current and future generations.” An attorney for the industry groups said his clients were unable to reach a consensus about what stance to take on these statements.
The plaintiffs are also seeking documents from the industry groups about their lobbying activity and their internal discussions about climate change. For more than a decade, NAM and the other groups lobbied forcefully against climate action, and sought to undermine scientific findings about the threat climate change posed. The plaintiffs are hoping to document, through discovery, these group’s “knowledge of climate change and how dangerous it is and the causes of it,” Olson says.
The case comes as environmentalists increasingly look to the courts for action on climate change. With a climate change denier in the White House and foes of climate action holding the upper hand in both houses of Congress, environmentalists hope the third branch of government might hold the key to progress. A recent survey by the UN Environmental Programme and the Columbia University’s Sabin Center for Climate Change Law found that the US lead the world in climate change-related lawsuits: 654 climate-related cases have been filed in US courts, compared with 230 cases in all other countries combined.
Cases like Our Children’s Trust’s federal suit appear to have big polluters concerned, and are giving environmentalists cause for optimism. Judge Aiken’s ruling last November that the suit could move forward, issued only days after Donald Trump was elected, “offered some hope that the courts will stand as a bulwark against what will be a long, hard-fought battle — a real onslaught against environmental protections,” Michael Burger, the executive director the Sabin Center, told BillMoyers.com earlier this month.
