Plaintiff standing questioned in challenge to Trump energy orders

Laura Lundquist

(Missoula Current) While considering the merits of a climate change lawsuit, a Missoula federal judge has to decide whether his district court has the authority and the ability to put some far-reaching presidential executive orders on hold.

Wednesday was Day 2 of a two-day injunction hearing in the case of Lighthiser v. Trump, which meant that while federal Judge Dana Christensen listened to a few more of the plaintiffs’ witnesses and closing arguments, he was mulling over a few difficult legal questions regarding the plaintiffs’ injunction request.

“In your motion, it says you want a preliminary injunction from me prohibiting the defendants from implementing these three orders. What exactly does that look like? I enjoin them, and what else do I do?” Christensen asked plaintiffs’ attorney Julia Olson during her closing statement. “Let’s assume these defendants elect to continue to implement policy favoring fossil fuels regardless of what I say. What will I do then?”

President Donald Trump issued the three executive orders in question within the first three months of taking office this year. Combined, they make it easier for the fossil fuel industry to extract and produce more coal, oil and gas by opening more federal land to extraction, declaring an energy emergency that allows for streamlined permitting, and eliminating energy efficiency standards and electric vehicle mandates.

The 22 youth plaintiffs represented by the nonprofit Our Children’s Trust are challenging the orders, saying they violate the Fifth Amendment of the Constitution, which says they can’t be deprived of life without due process of law. By encouraging increasing carbon emissions from fossil fuels, the orders worsen the effects of climate change, which affect the plaintiffs’ health and could cause their early death. That’s why they’re also asking for an injunction.

The plaintiffs also say that, in addition to upping fossil fuel emissions, the wording of the orders is biased against wind and solar energy, so agency secretaries are subsequently shutting down numerous wind and solar projects that would have helped offset carbon emissions.

For example, one order blames the “energy emergency” on “a precariously inadequate and intermittent energy supply.” The plaintiffs say “intermittent” implies wind and solar energy, since they’re considered intermittent. although the plaintiffs’ witnesses, including Stanford University Civil Engineering professor Mark Jacobson, said they weren’t unreliable nor inadequate.

On Wednesday, the plaintiffs brought four more witnesses to the stand to bolster their case, including one more youth plaintiff, 17-year-old Isaiah H. of Missoula. The Department of Justice attorneys produced no witnesses for the defense.

Geoffrey Heal, an expert in energy economics, presented evidence that countered the claims made in the orders that solar and wind energy are more costly, cause problems by being intermittent, and compromise energy security. Nicole Hughes, Renewable Northwest executive director, testified that several proposed wind projects have been cancelled while projects already underway have been stopped, costing developers millions of dollars and reducing the amount of energy that electrical suppliers like the Bonneville Power Administration had planned on.

Finally, Red Lodge pediatrician Lori Byron testified about how climate change effects, such as extreme weather events, higher temperatures and wildfire smoke, and toxic emissions from fossil fuel production adversely affect human health, especially for children whose bodies are small and still forming. The health problems can follow them into adulthood.

“It’s a sub-optimal form of medicine to treat things after they happen. You generally want to prevent things from happening if they’re preventable,” Byron said.

Olson said the defense attorneys hadn't contested the statement that the central purpose of the executive orders is unleashing fossil fuels. But in his closing statement for the defense, DOJ attorney Michael Sawyer said that wasn’t the only thing the plaintiffs had to show. They have to prove they have standing by showing how they’re harmed by the executive orders and how that harm might be relieved by an injunction and eventually a ruling. That last part, known as redressability, was perplexing Christensen, and Sawyer weighed in, saying such an “unprecedented” injunction would be too difficult to police.

“If there were to be a preliminary injunction, there would be numerous requests back here. Every time an agency action is issued that plaintiffs didn’t like, that they thought was too friendly to fossil fuels, they’d be back here again,” Sawyer said. “What we have here is hundreds of lawsuits packed into one.”

Sawyer said repeatedly over the two-day hearing that the plaintiffs lack standing because their case is too similar to Juliana v. United States, a previous climate change lawsuit brought during the first Trump administration by Our Children’s Trust. The Ninth Circuit Court of Appeals dismissed the Juliana case not on the merits but because redressability would be almost impossible. Sawyer said the Ninth Circuit ruling also applies to the Lighthiser case.

Olson argued the cases weren’t similar because the plaintiffs weren’t asking for a plan to overcome 50 years of fossil fuel policy as in the Juliana case; they just wanted energy policy to revert to what existed on Jan. 19 before the executive orders were issued. She said Christensen should rely on the Supreme Court’s ruling in Diamond Alternative Energy v. EPA, where the justices ruled plaintiffs have standing to challenge the federal government based on market effects, not just direct regulation, and they “did not say courts have to ignore predictable effects,” Olson said.

“If an injunction can stop one ton of emissions, that makes a difference,” Olson said.

Sawyer also said the plaintiffs hadn’t shown they had a Constitutional “right to life” claim, saying “it can’t be the case that all you have to do is articulate some risk to life” to make a due process claim.

Olson said her plaintiffs face risk to life so they should be able to challenge energy policy, not just make public comments after actions are finalized. They can’t choose the air they breathe, and the fossil fuel policy their government put in place will make their lives worse, Olson said.

“This court has jurisdiction to do the job you have done for decades, to sit on the bench, review the evidence, review the policy and all the legal arguments, and look at the precedent. And do what judges did back in the 1950s in cases like Brown v. Board of Education, who said, ‘This hasn’t been done before, and Plessy v. Ferguson is still on the books. But I’m going to look and measure these policies of segregation against the Constitution, even if it has broad implications.’ This court has the power to measure these policies,” Olson said.

Christensen took no action Wednesday.