Speaker 1: Hello, and welcome back to Drilled. I'm Amy Westervelt. Today
Speaker 1: an update on a big climate case that's been ongoing
Speaker 1: for about seven years now. It's probably the best known
Speaker 1: of all of the climate cases, the Juliana Case, or
Speaker 1: officially Juliana versus the United States. In this case, twenty
Speaker 1: one young plaintiffs sue the US government over climate change.
Speaker 1: It's often been misreported that they sued the government for
Speaker 1: inaction on climate but that's not actually what they said.
Speaker 1: In fact, the plaintiffs sued the government for effectively enabling
Speaker 1: and accelerating climate change via policies that support and encourage
Speaker 1: more and more fossil fuel extraction, so fossil fuel subsidies
Speaker 1: or highway bills that make the country dependent on cars.
Speaker 1: There's anything that basically encourages more emissions. That's not just
Speaker 1: me being all well. Actually, although okay, fine, I do
Speaker 1: like to do that sometimes, it is actually a really
Speaker 1: important distinction. Here's Julia Olsen, the lead attorney on the case,
Speaker 1: to explain.
Speaker 2: So, the case is about the government's affirmative acts that
Speaker 2: have put these young people in a position of danger
Speaker 2: and continue to act in ways that are enhancing the
Speaker 2: danger for young people. As a lawyer, I'm looking at
Speaker 2: the party most responsible for causing the harm, and I'm
Speaker 2: also looking at the remedy that's available to really stop
Speaker 2: the climate emergency from worsening and to begin to redress
Speaker 2: it so that we can protect these fundamental life support
Speaker 2: resources for these young people. When I look as the
Speaker 2: party most responsible, it is the United States government, historically
Speaker 2: and presently because of the government's creation of promotion, of
Speaker 2: support of a national fossil fuel energy system.
Speaker 1: Some lawyers, especially those going up against the oil companies themselves,
Speaker 1: have criticized the Juliana case for being too broad or
Speaker 1: for taking the spotlight off of the fossil fuel industry.
Speaker 1: But Olsen doesn't see the two as mutually exclusive, and
Speaker 1: having covered the climate crisis for more than twenty years now,
Speaker 1: I kind of tend to agree. Seems to me like
Speaker 1: there's plenty of accountability to go around. The Juliana case
Speaker 1: was originally filed in twenty fifteen, and in twenty twenty
Speaker 1: one it looked like it was dead in the water.
Speaker 1: Back in twenty twenty, the Ninth Circuit Court of Appeals
Speaker 1: ruled that the plaintiffs didn't have standing to bring this case,
Speaker 1: So the plaintiffs asked for what's called an on banc rehearing.
Speaker 1: That's a request that a full panel of judges, So
Speaker 1: in this case, eleven judges look at a case, not
Speaker 1: just the three who happened to review it the first time.
Speaker 1: They asked for that in twenty twenty, and in early
Speaker 1: twenty twenty one, the Ninth Circuit said, Nope, we're not
Speaker 1: going to rehear it. Our decision is our decision. So
Speaker 1: a lot of folks thought this case was done for,
Speaker 1: but the Ninth Circuit issued a mandate to send the
Speaker 1: case back to District court in Oregon.
Speaker 3: So now it's back in front of Judge Aigan. And
Speaker 3: at that point we decided the best path forward and
Speaker 3: sort of the most efficient past path forward to get
Speaker 3: to a ruling in the case and to get to
Speaker 3: trial was to amend the complaint.
Speaker 1: We're going to get into how the complaint was amended,
Speaker 1: what's happened since then, and what's going on with youth
Speaker 1: climate cases in general. Right now, that's all coming up
Speaker 1: right after this quick break. Okay, So, back in twenty
Speaker 1: twenty one, Olsen and her team filed an amended complaint
Speaker 1: and the Juliana case got a second life.
Speaker 3: So we amended our complaint and we changed the request
Speaker 3: for relief. At the end, we took out the specific
Speaker 3: request for the court to order a plan be prepared
Speaker 3: on fixing the climate crisis, and we really refocused our
Speaker 3: requests for relief on what's called declaratory judgment, so asking
Speaker 3: the court in the first place to just declare the
Speaker 3: constitutional rights and say whether the government has violated those
Speaker 3: constitutional rights of these young people. And so the request
Speaker 3: for relief focuses on that. It does also ask the
Speaker 3: court to award plaintiffs any other relief that the Court
Speaker 3: finds is appropriate or necessary after a trial is held
Speaker 3: and all the evidence comes out. So we did that
Speaker 3: and then we added new factual allegations to the body
Speaker 3: of the complaint and we connected the dots better to say, hey,
Speaker 3: you know, one big part of the injury here is
Speaker 3: that the US government is saying to young people that
Speaker 3: they don't have constitutional rights. They are saying that it's
Speaker 3: totally within the law for them to continue to promote
Speaker 3: fossil fuel energy, that that's okay to do. And so
Speaker 3: there's a real controversy there. And if the court resolves
Speaker 3: that controversy in favor of these young people and says
Speaker 3: that that conduct is unconstitutional. You know that the fossil
Speaker 3: fuel energy policies and practices of the United States government
Speaker 3: are unconstitutional. Then that changes this whole legal relationship between
Speaker 3: these young people and their government. And then the government
Speaker 3: can't keep saying, oh, we can keep promoting fossil fuels,
Speaker 3: we can permit all of this, we can lease public
Speaker 3: lands for fossil fuel extraction. That's totally within our right.
Speaker 3: They will be wrong at that point, and then things
Speaker 3: will really begin to change. And so we said in
Speaker 3: the complaint that if the court issues that declaration of
Speaker 3: constitutional law, that the federal government will abide by it
Speaker 3: and they will begin to change the way our energy
Speaker 3: system is run in our country.
Speaker 1: That actually feels like a pretty huge deal, especially as
Speaker 1: we've been watching the Biden administry struggle to change any
Speaker 1: policies at all with respect to climate and fossil fuels.
Speaker 1: One of the first things the district court judge in
Speaker 1: Oregon who's overseeing this case, Judge Aiken, did was to
Speaker 1: order Olsen and her team to have a settlement conference
Speaker 1: with the US Department of Justice to see if they
Speaker 1: could work out a settlement agreement instead of taking this
Speaker 1: case back to court.
Speaker 3: June twenty third was our first settlement conference, and June
Speaker 3: twenty fifth was the oral argument on the motion to amend.
Speaker 3: So we've had one settlement conference and what happens in
Speaker 3: those conversations has to be kept confidential. It's the way
Speaker 3: settlement negotiations work. It frees the parties to talk freely
Speaker 3: with the settlement judge and to not disclose that conversation publicly,
Speaker 3: So I can't talk about the content.
Speaker 1: That was Julie Olsen talking to me back in July
Speaker 1: when the team had just had one settlement conference friends
Speaker 1: and gone through oral arguments on this new amended complaint.
Speaker 1: The reason I wanted to talk to her back then,
Speaker 1: kind of in the middle of all of this process,
Speaker 1: was that something really strange happened as that first settlement
Speaker 1: conference was getting underway. The Attorney General of Alabama, joined
Speaker 1: by a Republican attorneys general from sixteen other states, filed
Speaker 1: a motion to intervene in this case. And that means
Speaker 1: we got to talk about RAGA. The Republican Attorneys General
Speaker 1: Association RAGA was started back in the nineteen nineties. As
Speaker 1: a reaction to the tobacco litigation. That litigation had been
Speaker 1: started mostly by Democratic attorneys general, and Republicans took a
Speaker 1: look at the legal landscape in the country and realized
Speaker 1: that they were vastly outnumbered by Democrats in state attorneys
Speaker 1: general offices. That was something that was going to need
Speaker 1: to change if they were going to avoid states going
Speaker 1: after an industry ever again. So the attorney's general of Alabama, Texas,
Speaker 1: and South Carolina came together and created RAGA, and then
Speaker 1: they set about getting Republican attorneys general elected.
Speaker 4: I had looked at this back when I was working
Speaker 4: on the Senate Judiciary Committee in terms of the rise
Speaker 4: of RAGA, the Republican Attorney's General Association, where we know
Speaker 4: that it's a pay to play operation.
Speaker 1: Lisa Greeves ran the Center for Media and Democracy for
Speaker 1: years and now runs the research firm True North. She's
Speaker 1: been tracking RAGA since its inception.
Speaker 4: We know that it has had enormously distorting effect on
Speaker 4: US law. It provides a mechanism for corporations to pass
Speaker 4: money through to help attorneys general in ways that they
Speaker 4: would not be able to individually solicit for their own
Speaker 4: campaigns given their role their regulatory role over those very industries,
Speaker 4: and that's been going on since RAGA was created back
Speaker 4: more than twenty years ago. Now, RAGA now is not
Speaker 4: just a recipient of donations from big oil and big
Speaker 4: huge corporations, but it's also a major recipient of funds
Speaker 4: in which the source is completely unknown to anyone other
Speaker 4: than the person raising the money. The agenda of the
Speaker 4: people who fund the RAGA the Republican Jurney General's Association,
Speaker 4: and have been really attempting to work a legal revolution
Speaker 4: through offices that we would otherwise consider to be independent.
Speaker 4: It would be nice to have attorneys general of states
Speaker 4: who were not so captive to advancing the interest of
Speaker 4: Charles Coke, but unfortunately we are in an era in
Speaker 4: which those interests have been dominating.
Speaker 1: They successfully took the lead over Democrats several years ago
Speaker 1: and transitioned to Phase two, coordinating on a meek briefs
Speaker 1: and constitutional cases. You definitely know their work, even if
Speaker 1: you've never heard of RAGA before. Today.
Speaker 5: Now for an opposing view, we're joined by Ted Cruz.
Speaker 5: He is the Solicitor General for the State of Texas,
Speaker 5: and he drafted the amicus brief signed by Attorney's General
Speaker 5: of thirty one states who say the DC handgun ban
Speaker 5: should be struck down.
Speaker 6: More than one hundred House Republicans on Thursday signed onto
Speaker 6: an amicus brief in support of the Texas lawsuit aimed
Speaker 6: at overturning the election result in four swing states Georgia, Michigan, Pennsylvania,
Speaker 6: and Wisconsin.
Speaker 1: So yeah, the same group that's been mobilizing against gun
Speaker 1: control and abortion for years and that tried to get
Speaker 1: the twenty twenty election results overturned all of a sudden
Speaker 1: showed up in the Juliana case six years after the
Speaker 1: case was filed. Now, normally, when someone files a motion
Speaker 1: to intervene in a case, they're effectively joining that case
Speaker 1: as a co defendant or a coplaintiff. But in this case,
Speaker 1: the Republican ags don't want to be co defendants with
Speaker 1: the US government. They only wanted to intervene in certain
Speaker 1: parts of the proceedings. Here's Julia Olsen again.
Speaker 3: They have a political agenda to protect gun rights, to
Speaker 3: put limits on voting rights, to stop women from having
Speaker 3: access to choices about their health and childbearing and abortion,
Speaker 3: and they also have a climate agenda and on their
Speaker 3: climate agenda is the Juliana case, and they have decided
Speaker 3: that this case has a real shot at winning, I think,
Speaker 3: and really establishing the constantitutional law around the extensive harm
Speaker 3: being caused by this crisis and by energy policies. So
Speaker 3: I think they realized that, oh, this case is going somewhere,
Speaker 3: and as a result of that, they asked the district
Speaker 3: court if they could come in and intervene for limited purposes.
Speaker 7: And so this intervention motion that they filed.
Speaker 3: It's really bizarre because typically when you have interveners, people
Speaker 3: who want to come into a case, they either want
Speaker 3: to come in as a plaintiff or they want to
Speaker 3: come in as a defendant and they want to participate
Speaker 3: in a case as a full party. And these attorney
Speaker 3: generals from these eighteen states.
Speaker 7: They aren't asking to come in as a party.
Speaker 3: They want to come in as sort of an interlocky tour.
Speaker 7: To just blow things up.
Speaker 3: They said very explicitly, they want to come and have
Speaker 3: a seat at the settlement table in order to prevent
Speaker 3: any settlement from happening.
Speaker 1: Keep in mind, this motion was filed in June twenty
Speaker 1: twenty one, so the Biden administration was just getting going
Speaker 1: and it maybe wasn't clear yet what his Department of
Speaker 1: Justice was going to look like. These attorneys general had
Speaker 1: no reason to intervene when it was a Trump DOJ
Speaker 1: dealing with the Juliana case, but now they weren't so sure,
Speaker 1: and they did not want the government settling with these
Speaker 1: attorneys and effectively creating a constitutional right to a livable
Speaker 1: planet in the US. According to Julia Olsen, they needn't
Speaker 1: have worried.
Speaker 3: I actually think the DOJ is not very different at all.
Speaker 3: In talking to lawyers in a lot of other cases,
Speaker 3: people aren't seeing a shift in the DOJ under the
Speaker 3: Biden administration and under the leadership of Merrick Garland, and
Speaker 3: I think they're still taking a lot of the same
Speaker 3: positions they have taken.
Speaker 7: And I actually think there's sort of a.
Speaker 3: Dangerous backlash happening from what went on during the Trump
Speaker 3: administration in terms of there was a lot of concern
Speaker 3: that the president at the time Trump was using the
Speaker 3: Department of Justice to achieve his personal needs.
Speaker 7: You know that they the Attorney.
Speaker 3: General Barber's acting as his private attorney kind of you know,
Speaker 3: that was a lot of the public perception and the
Speaker 3: concern of Congress, and that DOJ was not on the
Speaker 3: up and up. And so you know, President Biden has said,
Speaker 3: We're going to have clear rules and the Department of
Speaker 3: Justice will have prosecutorial discretion, and I'm not going to
Speaker 3: tell them who to prosecute, Right, that's their decision as
Speaker 3: the people's lawyer.
Speaker 7: And that all makes sense.
Speaker 3: But when the Department of Justice is defending clients, like
Speaker 3: different agencies that have been sued by people, then there
Speaker 3: is a really important role for the executive branch, that
Speaker 3: the political officials and the agencies and the White House
Speaker 3: to play in how they want to be defended in
Speaker 3: those cases.
Speaker 7: Right.
Speaker 3: So, as an attorney, you have an obligation to confer
Speaker 3: with your client and make recommendations. But at the end
Speaker 3: of the day, if your client wants to settle, or
Speaker 3: if your client wants to admit facts, or your client
Speaker 3: wants to take a particular legal position, the clients make
Speaker 3: that decision, not attorneys by themselves. And so I think
Speaker 3: the Department of Justice is kind of overreacting or overcorrecting
Speaker 3: what happened previously. And and in many cases, the policies
Speaker 3: of the Biden administration are not aligning with what the
Speaker 3: Department of Justice is doing in cases that have a
Speaker 3: huge bearing on those policies.
Speaker 1: Ultimately, it was a mood point. Judge Aikins still hasn't
Speaker 1: ruled on whether or not the RAGA attorneys can intervene,
Speaker 1: nor has she ruled on the amended complaint, and in
Speaker 1: the meantime, the settlement conferences have ended with no settlement.
Speaker 1: I spoke with Olsen again this week to get an update.
Speaker 3: You know, we have filed some unnoticed there's a supplemental
Speaker 3: authority that have been some Supreme Court cases that have
Speaker 3: been decided that we think are favorable to the mission
Speaker 3: to amend. So you know, when something arises, some new
Speaker 3: precedent that binds her, we it's on that her way.
Speaker 3: But otherwise we are just waiting on her decision on
Speaker 3: that mission to an end, which could come any day now.
Speaker 3: And we also for about about five months, starting in
Speaker 3: probably July, we were working with magistrate we're former magistrate
Speaker 3: Judge Tom Coffin as our settlement judge and engaging in
Speaker 3: settlement talks with the Department of Justice. Those became no,
Speaker 3: you know, we're not fruitful, and so we ended those
Speaker 3: talks in October.
Speaker 1: Wasn't part of the Republican Attorney General's request was like
Speaker 1: to be in on those talks.
Speaker 3: Yeah, yeah, they wanted they wanted to be able to
Speaker 3: have a seat at the settlement table, and that question
Speaker 3: had not been decided, but there was, you know, no
Speaker 3: need for them to have a seat at that settlement table.
Speaker 7: The Biden DOJ is.
Speaker 3: Continuing to do its job to fight this case, and
Speaker 3: at this point, you know, has not shown any non
Speaker 3: alignment with the position of the Trump administration, or for
Speaker 3: that matter, or the Red States.
Speaker 1: So that's interesting because it did seem like that might
Speaker 1: have been part of the motivation for the Republican Attorneys general, right,
Speaker 1: was that they thought, oh, a Biden DOJ is going
Speaker 1: to settle with them, and that might be bad. But
Speaker 1: they needn't have worried.
Speaker 7: They mayn't have worried.
Speaker 1: Now Olsen and her team are just waiting on a
Speaker 1: decision from Judge Aiken about whether she's going to accept
Speaker 1: this amended complaint and whether she'll allow the RAGA attorneys
Speaker 1: to intervene. In addition to wanting to be part of
Speaker 1: those settlement conferences, the Republican attorneys wanted to be able
Speaker 1: to weigh in on the amended complaint. Everyone is eagerly
Speaker 1: awaiting a ruling from Judge Eachin, which could come any day.
Speaker 7: Now, all right.
Speaker 3: I was hopeful that we would have had it before
Speaker 3: the end of twenty twenty one. And I also know
Speaker 3: that she has a very full docket that has obviously
Speaker 3: been impacted by COVID. So we are waiting and hopefully
Speaker 3: she cleared things out and Juliana will be next up.
Speaker 7: Yeah, and I don't know.
Speaker 3: I mean, if you've seen the projections that the projections
Speaker 3: from the EIA are showing, you know, continued increases in
Speaker 3: our oil and gas production, in our emissions, and of
Speaker 3: course I think twenty twenty one was like, what a
Speaker 3: six percent increase in emissions again, so we're headed in
Speaker 3: that exact opposite direction we need to, which is why
Speaker 3: we need to get back to court and get to trial.
Speaker 1: In the meantime, several other youth climate cases have been
Speaker 1: filed all over the world, including a few by Olsen
Speaker 1: in her team, most recently in Mexico and Canada. Olsen's
Speaker 1: happy to see it, but is also concerned about a
Speaker 1: new and troubling trend. She's seeing cases pushing for governments
Speaker 1: to adhere to the goals of the Paris Climate Agreement,
Speaker 1: so limiting warming to between one point five and two degrees,
Speaker 1: but also points out that those targets were a political compromise,
Speaker 1: they're not what science indicates is actually safe.
Speaker 3: And of course, for the most part, judges aren't going
Speaker 3: to independently lead climate science, and so they're going to
Speaker 3: rely on council to bring them the evidence, right, and
Speaker 3: when the evidence is coming in and they're saying, you know, yeah,
Speaker 3: to go with the Parish Agreement numbers, then judges are
Speaker 3: doing that. And so they're actually chases now and there's
Speaker 3: precedent building around the world that text human rights in
Speaker 3: whatever iteration the claims are brought, but whatever where that
Speaker 3: human rights law is in a particular country, whether it's
Speaker 3: in an international treaty or in a constitution.
Speaker 7: Or codified in some other place, they.
Speaker 3: Are linking it now to those one point five and
Speaker 3: two degrees seeing numbers, which is catastrophic.
Speaker 7: For humanity and for young people. And you know, it's
Speaker 7: my experience that most.
Speaker 3: Lawyers and even a lot of journalists don't understand that
Speaker 3: the foundational science is about Earth's energy and balance, right,
Speaker 3: Because as long as we have an energy and balance
Speaker 3: that the plants going to keep heating, right, And this
Speaker 3: is like fundamental science, that climate that sciences.
Speaker 7: Have interested for one hundred years or more.
Speaker 3: And there's this just phenomenal group of interdisciplinary scientists working
Speaker 3: together to continually define what that energy's number it is
Speaker 3: and what level of CO two in the atmosphere would
Speaker 3: correct that energy of balance, Like what do we have
Speaker 3: to go back to?
Speaker 7: And they continue to come.
Speaker 3: Up with the number three fifty We have to get
Speaker 3: below three fifty parts per million.
Speaker 7: Yeah.
Speaker 3: You know when I ask her any scientists the question,
Speaker 3: what do you think one point five is safe? Like
Speaker 3: do you think we can save these levels? And they're
Speaker 3: all like no, it's it's totally dangerous in catastropha.
Speaker 1: That sets a precedent not only for cases like Olsen's,
Speaker 1: but for policy too. If courts start to codify those targets,
Speaker 1: suddenly it becomes harder and harder to push for policies
Speaker 1: that align with science and human rights rather than politics.
Speaker 1: We'll be following that trend here and also on our
Speaker 1: new spin off show Damages, which is launching next month.
Speaker 1: On Damages, we'll be following the hundreds of climate cases
Speaker 1: making their way through courts all over the globe at
Speaker 1: the moment. Stay tuned after the credits for a quick
Speaker 1: trailer with more on that show. That's it for this week.
Speaker 1: Thanks for listening as always, and we'll see you next time.
Speaker 1: Drilled is an original Critical Frequency production. Our producer is
Speaker 1: Jules Bradley, mixing and mastering by Peter Duff. Our First
Speaker 1: Amendment attorney is James Wheaton of the First Amendment Project.
Speaker 1: Our artwork is by Matthew Fleming. The show is reported
Speaker 1: and written by me Amy Westervelt. If you'd like to
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Speaker 1: Thanks again and we'll see you next week. All right,
Speaker 1: You know what, there's a reason courtroom dramas stay on
Speaker 1: TV forever. They're dramatic. You've got the salty lawyers. Well,
Speaker 1: the First Amendment doesn't protect fraud and deception.
Speaker 8: Why would you keep a failing company as a partner
Speaker 8: to build your country's futurem and.
Speaker 1: The expert witnesses they were giving millions of dollars to
Speaker 1: other entities to support the idea that the Santo Breen
Speaker 1: has with.
Speaker 4: A house.
Speaker 1: And look, people don't file lawsuits, at least the kinds
Speaker 1: that you go to courtover for months and months and
Speaker 1: months unless they feel really wronged and are ready to
Speaker 1: fight reality.
Speaker 7: What both sides really want is more power.
Speaker 6: To me.
Speaker 7: It was like, bring it on, you know, and I'm
Speaker 7: not going to back down to fight. I'm not going
Speaker 7: to back down, not when it's right, you know, and
Speaker 7: not when people.
Speaker 2: Are being hurt.
Speaker 1: Right now, around two hundred court cases are making their
Speaker 1: way through legal systems around the world with one goal
Speaker 1: to hold companies and governments accountable for their roles in
Speaker 1: the climate crisis. They hinge on different legal strategies, but
Speaker 1: they're all fighting for one pointiff. It's all of us
Speaker 1: and life on this planet.
Speaker 4: Opponents of n Bridge Energies Line three oil pipeline that's
Speaker 4: being replaced across northern Minnesota are.
Speaker 3: Taking a unique legal approach to try to halt construction.
Speaker 8: Thanks on Mobiles subsidiary pays no text. They've been giving
Speaker 8: these texts bricks in addition to taking out eighty seven
Speaker 8: point five percent of Diana's oil.
Speaker 2: You're not allowed to lie when you know that you
Speaker 2: have a dangerous product and you're lying about it.
Speaker 6: That's a tour.
Speaker 1: Sometimes they win.
Speaker 8: The decision and Agenda was a huge breakthrough because it
Speaker 8: was an example of a national court actually enforcing an
Speaker 8: obligation of a government to reduce greenhouse gas emissions at
Speaker 8: the national level. No court had ever done that before.
Speaker 6: You have to take them to court to enforce law,
Speaker 6: and it looks like we're going to be able to
Speaker 6: enforce travel law and travel court against the state. So
Speaker 6: we use the ordinances and we find Shell and Conical
Speaker 6: Phillips in Ordnance Court in Madison County, Illinois for putting
Speaker 6: unzen on people's proferty.
Speaker 1: Welcome to Damages a new kind of legal drama. I'm
Speaker 1: Amy Westervelt and this is a podcast about a crime
Speaker 1: against humanity and the quest to bring the world's biggest
Speaker 1: climate criminals to justice.