The Supreme Court is about to decide if the children’s climate lawsuit can proceed

One of the biggest legal battles over climate change is now in limbo pending a decision from the Supreme Court’s chief justice, who took the odd step of halting the lawsuit to consider a stay. The court was expected to rule Friday on whether the case, which was expected to go to trial Monday, can proceed. But so far, no decision has been issued yet.

The suit, Juliana v. US, also known as the children’s climate lawsuit, was first filed in 2015 and now includes 21 plaintiffs between the ages of 11 and 22, including Sophie Kivlehan, 20, the granddaughter of the famed climate scientist James Hansen. The case argues that the US government undertook policies that contributed to climate change, thereby causing irreparable harm to young people and denying them a safe climate. As relief, they want the government to pursue policies to keep warming in check.

The trial was supposed to begin at the United States District Court in Oregon on October 29. But earlier this month, the defendant, the US government, asked for a stay of the case, arguing the costs of litigation would put an undue burden on it. Supreme Court Chief Justice John Roberts granted a temporary stay and halted discovery to allow the plaintiffs to respond. The district court then vacated the case pending a decision from the high court.

Working over the weekend, the children and their lawyers filed a 103-page brief last Monday, “in hopes of receiving a decision from the Chief Justice before the week’s end.”

Now the case is back at the Supreme Court, and what happens next is unclear, though it seems the other justices on the bench may weigh in.

Several legal analysts told Vox it is extremely unusual for the Supreme Court to step in to block a legal proceeding in a lower court. Appeals from the District Court in Oregon are almost always handled by the 9th Circuit, which has already declined to block the lawsuit.

And one of the only other times Supreme Court has done something like this was also related to climate change. In 2016, the court stayed the Obama administration’s Clean Power Plan to limit greenhouse gases from power plants, pending ongoing lawsuits from states suing to block the rule from going into effect.

But then the children’s lawsuit is an unusual case.

The plaintiffs essentially are arguing that a safe climate is a civil right, so the implications for climate change policy are huge. Though the case is in uncharted legal territory, it has survived several legal challenges and motions to dismiss, and lower federal courts have allowed it to proceed.

Ann Carlson, a professor of environmental law at the University of California Los Angeles, said that the Supreme Court stepping in on a case like this strongly suggests there’s something there that piques the court’s interest.

“It’s certainly a signal that the court is uncomfortable with the underlying legal theory of the Juliana case,” Carlson said.

The federal government, under Presidents Barack Obama and Donald Trump, has argued the case has no merit and repeatedly sought to have it dismissed. Asked for comment, the Department of Justice pointed to comments made by Jeffrey Wood, a political appointee at the DOJ handling environmental cases, who spoke about the Juliana case at a law conference last week. He said that “the purported constitutional right that they assert simply does not exist” and that the Juliana lawsuit “has no legal basis.”

“In our view, the Oregon lawsuit is an unconstitutional attempt to use a single court to control the entire nation’s energy and climate policy,” Wood said, adding “the plaintiffs in Oregon are ignoring the fact that clean and responsible production and use of fossil fuels remains vital to the health and well-being of the American people.”

For climate activists old and young, the courts have become a last resort for pushing governments and businesses to reduce greenhouse gas emissions, especially with an executive branch that’s still denying climate change exists and a gridlocked Congress.

There are also several ongoing climate change lawsuits filed by cities, counties, and a state against oil companies, though the pivot points are different. The local governments are citing nuisance statutes and seeking money from oil companies to pay for damages caused by climate change, whereas the children’s case is trying to force the government to enact policies to curb greenhouse gas emissions.

But the prospects for the children’s climate lawsuit to succeed appear dim, first because the courts tend to give wide latitude to the executive branch in these cases, and second because the Supreme Court’s newest Justice Brett Kavanaugh is much more skeptical of environmental regulations than his predecessor.

“This is just the beginning of what we’re likely to see from a Court that doesn’t have Justice Kennedy on it anymore,” Carlson said.