Posted: July 22nd, 2017
By: Samantha Tracy*| Guest Writer
Amongst a background of uncertain environmental policy changes, Juliana v. United States has fossil fuel trade organizations running from the courtroom.
Businesses join trade associations for a myriad of reasons: networking opportunities, effecting change in an area or industry, and learning about new trends and developments. Businesses small and large can enjoy the benefits trade organizations offer such as invitations to meetings, access to industry publications, and occasions to market their businesses. Within the fossil fuel industry, trade associations tend to focus on promoting members’ interests in legislation, public policy, and safety. These organizations handle everything from immigration reform to labor relations, international trade policies to domestic tax codes. Several trade associations have switched their attention towards tackling a critical environmental law case … against children.
In August of 2015, a group of kids and young adults between 9 and 21 years old filed suit against the United States, Barack Obama, numerous executive agencies, and most recently President Donald Trump. Backed by Our Children’s Trust, a nonprofit organization dedicated to protecting natural resources for future generations, this young group brought the lawsuit in the United States District Court for the District of Oregon. The young plaintiffs claim that their constitutional rights to a safe climate are being violated by the federal government’s contribution to climate change. The group further alleges that the government has known for more than fifty years that escalating carbon dioxide emissions were degrading the climate to the extent that it would “significantly endanger plaintiffs, with the damage persisting for millennia.” Judge Ann Aiken recently permitted this historical environmental suit to proceed to trial.
Three trade associations representing the fossil fuel industry joined the lawsuit as intervenors which function like voluntary co-defendants. Because they feared “massive societal changes” and an “unprecedented restructuring of the economy,” hundreds of oil and gas companies, through the umbrella of trade associations, sought to help the government fight this suit. The American Petroleum Institute (API), the National Association of Manufacturers (NAM), and the American Fuel & Petrochemical Manufacturers (AFPM)—whom collectively represent most of the nation’s energy and, consequently, most of American’s carbon pollution— joined due to the case’s possible impact on business interests including constricting sales of specialized products and incurring great losses in productivity. In an unusual turn of events, these intervenors now seek to withdraw from the case.
So why do they want out now?
The fossil fuel associations left the Court, and all watching the case, wanting for an explanation. This pending motion came about after the Court ordered the associations to submit a joint filing expressing their views on the state of the environment. A lawyer working for the three trade groups said the withdrawal was due to the groups’ inability to agree on the extent to which humans have contributed to greenhouse house emissions and climate change. Other defendant lawyers stated that withdrawal from the suit would streamline discovery and pre-trial procedures. But viewers are skeptical.
The intervenors may have recognized the dangers for future litigation by admitting in court certain stances on climate change and releasing damaging documents. Two days before the Trump administration took office, the Department of Justice admitted 98 facts related to climate change that would be harmful to the fossil fuel industry to admit. Furthermore, a request for documents would not only require member businesses to discuss climate issues but also ask individual industry researchers, lobbyists, trade association employees and other fossil fuel advocates to turn over relevant and possibly condemning memoranda. Climate lawsuits have already commenced against some member businesses, including Exxon Mobil. As a member of both the API and NAM, Exxon Mobil faces claims of fraudulent public stances on global warming after having researched climate change in 1977. More lawsuits similar to Exxon Mobil’s case could emerge if the oil companies continued participating in the Juliana suit.
The Juliana case has the capability to affect more than just climate regulations: the story of kids and young adults triumphing over the federal government and establishing a constitutional right to a safe environment has the power to influence policy and common law for decades to come. Time will tell how this case will shake out—and if big oil can shake loose.
Samantha Tracy is a second-year law student at Wake Forest University School of Law. She holds a Bachelor of Arts in Art History and Religion from the University of Georgia. She is currently a guest summer blogger for the Journal of Business & Intellectual Property Law at Wake Forest University.