Young Environmentalists Sue Over Executive Orders That Benefit Fossil Fuels – CleanTechnica

---

Support CleanTechnica’s work through a Substack subscription or on Stripe.

---

Two years ago, a group of young environmentalists sued the state of Montana, claiming its constitution guarantees them — and all Montana residents — a safe and clean environment. In fact, that is precisely what the Montana constitution says and so the plaintiffs won. As we all know by now, legal decisions are always subject to appeals. But to the surprise of many, the Montana Supreme Court agreed with the lower court and affirmed the decision. Will wonders never cease?

Now, some of those same young plaintiffs who sued Montana have joined with other youthful activists to sue the federal government and are asking a federal court to block many of the pro-fossil fuel policies instituted this year in the name of a fake so-called “energy emergency.”

Not surprisingly, the legal advisors to the environmentalists are from Our Children’s Trust, which describes itself as “a non-profit public interest law firm that provides strategic, campaign-based legal services to youth from diverse backgrounds to secure their legal rights to a safe climate. We work to protect the Earth’s climate system for present and future generations by representing young people in global legal efforts to secure their binding and enforceable legal rights to a healthy atmosphere and stable climate, based on the best available science.”

Our Children’s Trust also represented the young people who sued the state of Montana and won. This week in a federal courtroom in Missoula, Montana, the young plaintiffs asked the judge to block three presidential executive orders. That hearing marked the first time a federal court has heard live testimony in a youth-led constitutional climate case.

Targeting Executive Orders

According to The Guardian, the lawsuit specifically targets executive orders declaring a “national energy emergency” and aiming to “unleash American energy,” and another April order aimed at “reinvigorating” the domestic production of coal, which is the most polluting and costliest fossil fuel of all. They argue those executive are unlawful and violate the state-created danger doctrine, a legal principle meant to prevent government actors from inflicting injury upon their citizens.

“At a time when we need to reduce fossil fuel reliance, the federal government is actively setting us back with these executive orders designed to unleash fossil fuels,” Georgi Fischer, a plaintiff in the case, told The Guardian. “It’s incredibly important for us to fight back against these unconstitutional attacks on our rights to life and liberty.” Fischer was also a plaintiff in Held vs. Montana, the state level lawsuit that enforced the provisions of that state’s constitution.

“If the Held v Montana case taught me anything, it’s that our voices and stories can be incredibly powerful and so I’m hoping the court listens to us and understands how our lives and our futures are being harmed by these unconstitutional executive orders,” Fischer said.

During the court proceedings, some of the plaintiffs gave testimony to the court and were joined on the stand by five expert witnesses and six fact witnesses, including Columbia environmental economist Geoffrey Heal, Stanford University civil and environmental engineering professor Mark Jacobson, global ecology expert Steven Running, and John Podesta, former White House senior advisor on clean energy under Joe Biden.

“I’m proud to speak on behalf of these young plaintiffs about the devastating impact of these executive orders,” Podesta said in a statement. “The plaintiffs make a compelling case that these orders will only make the climate crisis worse, putting at risk the health, safety, and economic well-being of these young people as well as their families and communities.”

The federal government did not call any witnesses, a tactic adopted by the state of Montana in the prior litigation in state court. Last month, the federal government moved to dismiss the youth plaintiffs’ case. The state of Montana and a coalition of 18 other states plus Guam also called for the dismissal of the lawsuit but those requests were denied.

The young plaintiffs will not have an easy time of it in federal court. A previous federal climate lawsuit filed by Our Children’s Trust ended in a denial from a federal court of appeals earlier this year after a decade of litigation.

“These are always uphill battles, especially under [an] administration determined to tilt the scales toward fossil fuels, but the constitution is clear: no president can sacrifice children’s rights and futures to prop up one industry,” said Mat dos Santos, Our Children’s Trust’s general counsel. “A victory would mean that even presidential power has limits, especially when children’s lives, health, and futures are at stake.”

An Uncomfortable Judge

District Court Judge Dana Christensen was clearly uncomfortable with the proceedings in his courtroom, which involve a confluence of many legal theories, some dating back to the creation of the Constitution itself. “What is it you want me to do?” he asked the attorneys for the plaintiffs. The judge clearly intends to act cautiously in a matter that is surely going to be heard by a federal appeals court at the very least and probably by the US Supreme Court as well. Everyone is watching and no judge likes to be overruled.

According to the Daily Montanan, the judge said, “If I enjoin these orders, and these defendants enact policies favoring fossil fuels regardless of my enjoining the executive orders, what do I do then? Many things done by these agencies … appear to be derived from or based on these orders. … Do you want me to enjoin these agency actions as well?”

Julia Olsen, the lead attorney for the plaintiffs, said the goal was to revert the country to a “status quo” that existed on January 19, the day before the three executive orders at issue were signed. “The entire body of conduct should be enjoined, because it’s unconstitutional and is causing irreparable harm to these plaintiffs.”

Christensen was skeptical, saying if he granted the injunction sought by the plaintiffs, that could make it necessary for him to review every energy-related policy and action taken by numerous government agencies “until the expiration of our collective lifetimes.”

Attorneys for the federal and state governments agreed, saying the court was essentially being asked to set national energy policy. “It’s unprecedented,” federal attorney Michael Sawyer said. “There is no basis in law for stepping in and going back to January 19th.”

In addition, he said an injunction would force the district court into overseeing the actions of at least 13 federal agencies, with the plaintiffs’ lawyers returning to court every time they dispute an energy permit or federal rule. “They basically get to become the masters of the court’s injunction,” he said. “This is thousands of lawsuits packed into one. There’s been hundreds of different permitting decisions by the Department of the Interior. They want the court to jump in and issue one ruling to stop them all.”

Government Overreach

The government is undoubtedly correct. This is thousands of lawsuits packed into one, but that does not change the fact that the federal government has violated every principle of justice and fair play by its actions. Right wing extremists always scream that government should not be picking winners and losers in the marketplace, but that is precisely what these executive orders have done.

Those extremists also squeal about government overreach and yet there has never been a clearer example of government overreach than the anti-clean energy policies of this administration. Congress won’t do its job because many of its members are terrified of retribution by the right wing crazies if they do. The only bulwark against tyranny remaining is the courts, but clearly the solution to this impasse should be political, not legal.

What is especially galling is the administration created this precise situation knowing full well that it would be challenged in court and that it could always hide behind the “courts should not make policy” argument. They rely on executive orders that take effect immediately versus lawsuits that can grind on for years. By the time the courts react, it’s already too late and the extremists take full advantage of that.

What Judge Christensen will decide or when he will issue a ruling is unknown. What is known is that if he does not kowtow to the executive branch, he will be excoriated by the so-called president and his allies.

If the executive and the legislative branches fail and refuse to protect the health and safety of the citizens, is it the job if the judiciary to try to force their hand? In our dreams, perhaps, but in the real world, this case is not going to succeed, not because it doesn’t have merit — it clearly does — but because for all intents and purposes, this or any other judge is powerless to craft a realistic remedy that will accomplish the goals of those who put this matter before the court.

The solution is to elect people who will put the interests of citizens first and not corporations. That is a big ask, but it needs to be done if America has any hope of maintaining its position as a leader on the world stage.