Climate trial halted as Trump admin seeks to bar witnesses

Source: Benjamin Hulac, E&E News reporter • Posted: Tuesday, November 27, 2018

The Trump administration is seeking to thwart certain witnesses from testifying in support of young Americans suing the federal government in a landmark climate change lawsuit.

They include the relatives of some of the plaintiffs, a former White House climate expert and a climate researcher from Columbia University’s law school.

Government lawyers filed the motion to bar the seven witnesses Tuesday, a day before an Oregon district judge halted the case pending a decision from the 9th U.S. Circuit Court of Appeals.

Both the Supreme Court and the 9th Circuit have raised questions about the case, Juliana v. United States, but they’ve previously let it proceed, despite repeated entreaties from the Trump administration to dismiss it.

Twenty-one children and young adults first filed the case in 2015 arguing that they have a right to a safe climate and that the government has actively aided the consumption of fossil fuels nationwide, despite knowledge of the risks of climate change since the 1960s. They’re seeking a federal court order forcing the government to phase out fossil fuels.

The plaintiffs aim to bolster their case with more than 600 exhibits, many of which are decades-old government records that show climate and energy research programs undertaken by federal agencies, like the U.S. Army and the Department of Energy (Climatewire, Oct. 26).

But following Wednesday’s order from Judge Ann Aiken of the U.S. District Court for the District of Oregon — Aiken also certified prior orders in the case, meaning they can be appealed to the 9th Circuit — the trial is unlikely to happen in the near future.

Still, lawyers for the plaintiffs and the government continue to jockey over potential witness testimony and what records can be considered evidence.

The Department of Justice has complained in court records about the length of the trial. Scheduled to begin Oct. 29, it had been expected to run for several months.

“Plaintiffs project almost 182 hours of direct testimony” from 68 witnesses, according to a DOJ court record submitted last week.

The government wishes to depose the seven witnesses if the court will not bar them from testifying.

Those witnesses include Jessica Wentz, a researcher at the Sabin Center for Climate Change Law at Columbia, and Stephen Seidel, a former staffer on the White House Climate Change Task Force.

DOJ also wishes to prevent the mother and grandmother of Jaime Butler, a plaintiff from Arizona; the mother of Nathan Baring, a plaintiff from Alaska; and the mother of Levi Draheim, a plaintiff from Florida, from testifying.

Government lawyers accused the plaintiffs of concealing these witnesses until shortly before trial.

“Under no circumstances should Plaintiffs be permitted to present witnesses at trial without affording Defendants the opportunity to depose them,” DOJ said.

In a statement, DOJ spokesman Wyn Hornbuckle said, “We are pleased that the district court has certified the case for appellate review.”

Julia Olson, an attorney for the plaintiffs, sharply criticized the government for running down the clock in this lawsuit.

“The government’s conduct in this case has been rife with misstatements to the courts, repetitive delay tactics and unfounded claims of supposed irreparable harm of having to go to trial,” Olson said in a statement. “These claims are not supported by a shred of evidence.”

“This case deserves a reasoned decision from an independent judiciary, and that can only happen on a full record with rigorous presentation of evidence at trial, just as Judge Aiken indicated,” she added.

Aiken, who has rejected similar requests from the government in the past, wrote Wednesday the court does not make the decision to halt the case “lightly.” She had previously indicated that she wished to begin trial quickly.

At one point in the case, she said that a safe climate is surely a civil right.

“Exercising my ‘reasoned judgment,'” Aiken wrote in the winter of 2016, “I have no doubt that the right to a climate system capable of sustaining human life is fundamental to a free and ordered society.”

Now, it is unclear how much she will be able to exercise that judgment.