The sky tears open and drops out of itself. It is fall in Oregon, so the rain is not a surprise. The surprise is that the court is mostly vacant, the trial hasn’t started, and nineteen of the twenty-one young people who are suing the federal government over climate change are standing on the steps having a protest instead.
They have come from all over the nation, from Hawaii and Alaska and New York, most traveling from landscapes already scarred by worsening weather. The youngest came from a barrier island off the east coast of Florida, where a red tide has just invaded the beaches and the fish are turning up dead. Another, from Colorado, has been hunkered down indoors with air purifiers during the worst fire season in the state’s history. A third is living on a concrete slab in Louisiana, her family not yet able to replace their floors after a flood two years ago, courtesy of torrential rain. Collectively, they are litigating the deaths of fruit trees; the swallowing of islands; injuries to farming, fishing, and recreation; and the relentless worsening of wildfires in the West. They wear suit jackets and skirts and expressions of frustration and defiance.
Things do not work as they used to. That much is clear.
Philip Gregory, an attorney for the young plaintiffs, will soon clarify the rest. He approaches a podium midway up the steps to this courthouse in the Ninth Circuit and offers what the day’s emcee terms “an update directly from the legal team.”
He begins with something of a war cry.
“In August 2015, these young plaintiffs filed this lawsuit. This. Is. No. Ordinary. Lawsuit!”
His words are broadcast by speakers on both sides of the podium while the rain kindly slows its drumbeat on a pop-up tent overhead. The weather has been blustery enough that someone thought to strap the tent to cinder blocks, but the crowd seems mostly unfazed. Clad in rain hats and waterproof jackets, hoodies and damp sweaters, about fifteen hundred people are already shouting. Organizers have been pumping them full of funk music, and a tribal elder just called the plaintiffs “guardians of the earth.” People are amped.
Gray hair swept back, Gregory describes the case as a constitutional one, brought by youth who are taking on the feds. “These young people this morning were supposed to walk into this courtroom and begin putting the climate science into evidence. But the federal government is waging a war defending the fossil fuel interests!” The crowd boos. One man behind me shouts: “Actually, I think it’s the Koch brothers!”
“The federal government has taken their fight all the way up to the United States Supreme Court!” Gregory hollers. “And they’re choosing the fossil fuel companies over these young plaintiffs, over the youth of America, over our posterity!”
This is his way of detailing why the Supreme Court just stalled the plaintiffs’ case, Juliana v. United States, ten days before trial. It’s a lawsuit that posits that young people—the plaintiffs, and future generations too—have a constitutional right to a stable climate. Its charge is that the government’s actions to cause climate change violate their civil rights to life, liberty, and property. Not only that, but also that the government has known about the risks of climate change for decades and persisted in helping to cause it anyway, failing to implement its own plans to regulate greenhouse gases while subsidizing, authorizing, and permitting a fossil fuel energy system that worsens global warming every day.
The case is only one piece of a legal battle led by the Eugene-based Our Children’s Trust, a public interest law firm that helps young people fight climate change. But it’s a big piece. The only federal piece still standing. Whether now or later, it’s the piece most likely to finish in the Supreme Court, making it one of the most important lawsuits of our time. What makes it especially unique is that the US government does not plan to dispute climate science at trial. Its experts have already conceded in documents that climate change is an urgent threat and that the United States is solely responsible for 25 percent of global carbon accumulation since the industrial age—more than any other entity on Earth. What looms for America is less another scientific debate, another fresh round of punditry, than an overdue public awakening. In a nation with dramatic influence on climate issues worldwide, this is the trial.
Now the plaintiffs stand beside Gregory against the glass facade of the federal courthouse, festooned as it is with banners: “Give Science Its Day in Court.” “Let the Youth Be Heard.” Theirs is not so much a formal flanking as a DIY ethos that has them scattered all over the steps. They are energized and at least a little bit angry.
Four are in imminent danger of being displaced by climate change. Six are Indigenous, battling for land and culture. Two are competitive skiers adapting to slush. And another duo were raised on farms threatened by the proposed path of a natural gas pipeline. To say they are being cheered by the liberal town of Eugene, Oregon, is to minimize the fanfare. Placards outnumber umbrellas. Vendors sell hot chocolate under tents. And police have blocked off the street so supporters, some from as far away as Alaska, can carry banners through golden leaves without fear of a traffic incident.
Represented as they are, they are plainly not the youth of Internet-troll lore, stage-managed by hand-wringing parents who coach them from beyond the frame. Never is that more obvious than in situations like this one, in which the plaintiffs command the crowd while their parents are left alone to make friends, always the first to look tired. While some of the parents are activists, too, and introduced their children to the cause, often it is the reverse. Either way, each young plaintiff joined the case on their own, heard about it from some corner of their own world. Whether the adults followed them more deeply into the fight is beside the point.
Gregory tells the crowd that what is happening to these young people is a lot like what happened with the youth in Brown v. Board of Education, when kids argued their strongest grievance against the government all the way to the Supreme Court, and the court stood up for them.
“We believe that this Supreme Court will have courage, will have the same faith in the youth of America in protecting these young plaintiffs’ rights and will let this trial go forward,” he yells, then pauses. The crowd is gamely filling these silences with whatever spirited thing tumbles out. This time they scream, “Yeah! Let’s do it!”
The nation will be ill served, he says, if the plaintiffs cannot walk into that courtroom and testify how they’ve been harmed, and if their experts can’t testify, too, to a judge who can craft a remedy for the environmental mess all young people now face.
“This is not just the trial of the century. This is the trial for the future of this century!” He finishes to wild cheers.
———
I’ve been a journalist for a couple of decades, much of the time focused on the environment, and this dust-up between these twenty-one litigants and the federal government is one of the most fascinating things I’ve ever seen. In its early days, Juliana v. United States was dismissed as a media ploy, a legal longshot, but it has defied expectations in coming this far. For the last six months, I’ve found myself captivated by these young people at the center of it and how far this case will go.
Some of the words Gregory just shouted are not his own. “No ordinary lawsuit” comes from a ruling in the US District Court for the District of Oregon on November 10, 2016, in which Judge Ann Aiken issued the first-ever opinion that people have a fundamental right to a climate system capable of sustaining human life. That this case could be what tips US action on climate change now seems like a serious possibility.
I am not the only one who sees this, and the carnival-like atmosphere only portends what’s ahead. In a few short months, Juliana v. United States will belong to a larger youth call to action on climate, and these plaintiffs will move from mainly local renown to the pages of Vanity Fair, prime-time television, and celebrity selfies. That the lawsuit has its own podcast, and a documentary crew is among the media spectators in this crowd, are tiny details on the route of a fast-speeding train. On the courthouse lawn, posters feature each of the plaintiffs, and people are recording on cell phones, wearing Juliana patches held fast to their clothes with safety pins.
For the last three months, I have been meeting the plaintiffs and their families, background interviews to prep for trial coverage. I expected climate kids from affluent families, well-mannered crusaders with good teeth. None of them are what I expected.
Ten days ago, for example, Kiran Oommen (whose preferred pronoun is they) was in a coffee shop in Seattle when they got the news that their deposition was canceled and spontaneously cheered. Kiran was sitting in a window in the usual folk punk ensemble, dark jeans and high hair, metal studs in a denim jacket with patches and cut-off sleeves. They were not hoping for the trial to be canceled. Not at all. It was just that the thing Kiran hoped for more than anything else right then was a weekend. Two days in which they weren’t working or studying or organizing a rally or a small concert in the kitchen of the rental house that doubled as a music venue.
Pharrell Williams’s debut solo was incongruously playing on the sound system when the text buzzed in on Kiran’s phone. “Deposition’s canceled. Ha!” Kiran clapped. Their mood, which hadn’t been bad, brightened noticeably nonetheless. “That’s wonderful,” Kiran said, and exhaled like someone who had just been told they could keep their kidney after all. “Well, that’s good. I can work on Monday, and maybe I’ll actually pay my rent at the end of the month.”
It was a Friday, and the night’s bands were already arriving at their house. The rest of the collective and some of Kiran’s five roommates were busy setting up, but suddenly there was time to spare where lately there had been none. Days were waking at 6 a.m., changing lightbulbs and doing groundskeeping for the University of Washington, sucking on what seemed to be an unhealthy amount of smoke at the peak of the fire season, before tackling all the rest—school and organizing and music too. There were lots of days when Kiran headed home fourteen hours after leaving it, falling-down tired. And though Kiran wasn’t excited about being interrogated by the federal government, they were less concerned about this interrogation than about the mayhem of just fitting it all in. And because Kiran was arty, needed time to make things, they had been feeling off-kilter, as if a reset button could not be pressed. But a weekend. It would fix everything.
Flash forward, and now Kiran stands on the steps of the courthouse, wearing the kind of finery that is appropriate for a courthouse. Gone are the usual metal studs and pins, the sewn-on patches. “Diverse” is the light word for how to characterize the personalities in this group. Kiran knows they, meaning Kiran specifically, are the reason for the indirect but polite email about how important it is for the plaintiffs to not get arrested. They were an organizer from early days—their father a teacher, their mother a minister for the United Church of Christ that still eagerly claims them, nonpracticing though Kiran is—but on some days, their activism is more radical than is easy for everyone else to stomach.
Kiran doesn’t believe in top-down structures. In placing people on pedestals. In looking at other activists as anything other than fellow crusaders. They think that when you elevate people to such posts, the result is that those people tend to get away with things. Kiran doesn’t want to get away with things. Kiran wants to work alongside everybody else for this cause they care deeply about.
So when Kiran was asked if they were interested in joining the lawsuit, they were already veering from the mainstream, an activist about to graduate from high school but already involved in direct action. Kiran had never heard of people suing the federal government. The very idea of it “just sounded so absurd to me that part of me was just like, ‘Oh, this is hilarious. I would love to say that I’m suing the government.’” So Kiran signed on. Then there they were, on the steps of the federal courthouse, suing the government. Many of the people Kiran knew would not go in for this: changing the system through the system. But Kiran believed that if you truly mean to make change, to agitate, you rattle all the doors. Even the front door.
Now the front door of the courthouse is directly behind them. It seems to be, at least metaphorically, locked for now.
In another few minutes, Julia Olson, the plaintiffs’ lead attorney, a passionate speaker and much less a yeller than Gregory, takes to the podium to deliver a clear-eyed speech aimed less at the crowd than at the Supreme Court itself. It is a speech that calls out a weekend of horrific violence in Pittsburgh—yet another civilian massacre, this time at a synagogue—as a way of highlighting America’s track record with ugliness. Slavery, colonization, land theft, and internment. She notes how the Supreme Court has been an arbiter of much of it. An effective check on rogue power, a force of light in dark times.
“One of our most enduring traditions as a nation has been one that’s been emulated around the world. And it’s our system of checks and balances. It’s a judiciary that can hear the strongest grievances against our government, against our political branches,” she says from the podium, shoulder-length curls damp and curling tighter. “Even grievances that question and challenge long-standing practices of our government that betray our children.”
She quotes justices John Roberts and Sandra Day O’Connor, in moments when they defended their own independence and the import of children as citizens of democracy.
“Now the court has, from time to time, erred and erred greatly,” Olson says, like the time it defended the government’s decision to jail Japanese Americans during the Second World War. When the court has made these shameful, grievous errors, she says, “it has been because the court yielded to political pressure.”
She doesn’t say so outright, but this, in a nutshell, is what people fear will happen. The Juliana plaintiffs, ranging in age from eleven to twenty-two, have just collided headlong with the Trump administration’s steadfast denial of climate change and its deep ties to the enclave of wealthy one-percenters who got that way through fossil fuels. It is not an ideal time for the court to tend to politics.
These moments in this case, when humanity seems to be sliding ever more quickly toward an abyss—carbon dioxide in the atmosphere zipping past 410 parts per million and nothing to stop it—I try to imagine how this story will be resurrected and retold. Thousands of years from now, will an alien species find a lone library still standing on high ground? A digital tomb stuffed with urgent hashtags in Yucca Mountain with the nuclear waste? Maybe it will be a cache of YouTube videos, catapulted into space or to Mars on one of Elon Musk’s rich-guy rockets. What thoughts will they have when they see this mess, poke at our fossilized bones?
Here are mine: As I follow these plaintiffs for the next year, these days to test whether the American courts can protect the young from an imminent climate breakdown, they could have kept the world from burning. They didn’t. And this story of the youth at the heart of this case, the Juliana twenty-one, trial or none, it’s a story people ought to know. Not because there are times when kids can stand to learn a lot from an adult perspective. This is definitely not one of those times. But because if everyone in this country could see what I see, watching twenty-one young people question the value of their own lives against the entrenched politics of a government that threatens them, maybe this nation could do a better job of answering the question they have brought to the courts, to us all: Do children have a right to inherit a livable planet, and if so, is the government obliged to protect it?
To see the world through their eyes, see this question take shape, it is a heart-wrenching thing.
———
Since this lawsuit is her namesake, Kelsey Juliana does not have the luxury to look away.
Two months ago, she leaned her bike against a picnic table and sat down on the bench at Amazon Park in Eugene, a hundred-acre park just south of downtown, a place with miles of trails, a swimming pool, and lots of kids. Her parents’ home isn’t far, a modest bungalow with a less modest garden, so she used to play lava monster here back when the playground was mud instead of turf.
Nobody knows the name Greta Thunberg yet. Right now Greta Thunberg is a frustrated fifteen-year-old beginning solitary protests in front of the Swedish parliament, garnering little media attention and not much support.
But like Greta, Kelsey has been a climate activist from an early age, since she was ten. That was twelve years ago. Lately, she notices that something is different. The buzz around her trial is intensifying. A lot.
There are about a dozen kids on the swings behind her, diving for the green turf carpeting the ground. Their playful sound is like an echo from a carefree past. It is very distant for Kelsey. “I try to not dwell on the fact that two hundred species go extinct a day, and even if we were to stop fossil fuels right now, we’d still be feeling climate effects for up to one hundred years,” she says. “A lot of other places in the world . . . the issue of climate change is an issue that exists. It’s not like, ‘I don’t believe it.’ Or, ‘Do you believe it or do you not?’. . . The problem with the US is that it’s a political issue. Period. And it’s not about our livelihoods. It has nothing to do with what’s accessible, what’s right or wrong, what makes sense. It has to do with: ‘What party do you stand with?’ . . . That’s why this case matters. Because it takes away the politics. It’s not about Trump. It’s about a system within our government that meets the needs of industries instead of people.”
If Kelsey has a superpower, I will learn it is this: she can take the temperature of things. She can read not just a room but the collective noise of what is rising in the form of environmental zeitgeist. Later, I will notice the way she can conceive a thought—almost casually, in the middle of a conversation, a meal—and seize on something brewing in the culture, articulate what otherwise feels intangible. It seems she holds these reflections all the time, her mind a mirror of how the world cradles this cause. When she talks, gives speeches, and goes to classrooms to work with kids, she pushes these ideas back toward crowds and builds on them at once, underscoring values, advancing them further. She does this with no preparation, no notes, no rehearsal. It is more a way of being. And when she speaks, it is like she’s been listening hard and what comes out of her mouth is a translation of what she’s heard.
This day, her long brown hair with its touch of auburn seems in place no matter how it lands, and the sun shows on the tiny hoop in her nostril. She has large blue eyes that somehow never eclipse her face, fair skinned and oval. The air is warm, the sky a clear blue, and the leaves in the trees have a late-summer hue, a promise of fall.
Most of this work is drudgery, the highs fleeting, she says. The bits she loves are often few. In between, she practically needs a secretary, her days so full with calendaring and travel planning and appointments, plus the banal tasks of just being a person. “I’m still trying to just do my chores and, you know, wait on the phone with Equifax for forty-five fucking minutes,” she says, trying to check her credit.
In other words, she is not naïve about what she can expect in return for the investment of her time, which is frequently nothing. Sometimes worse than nothing, like when she is watching interviews of herself looking drained and unhappy and not being able to imagine a Friday night with friends instead of answering email and trying to just keep going—advocacy has just that much pull on her. But the trial? With her keen ear for how much noise this work could make, what she hears this summer is the volume pitching up, a change in how the space around her is beginning to feel. It’s what she’s been waiting for.
People are already talking about showing up to court on opening day, and what she is telling them is: “Yes, show up. But show up that day and one other day too. Blog about it. Post about it. Bring a friend.” “I don’t want it to be a resting place,” she says. In other words, not like a march. A thing you put on your calendar, get excited for, turn up to, and then forget. The trial will take weeks, months. She wants people to see it the way she sees it: as a day to start whatever comes next, even if all there is to start is the marathon of keeping up the pressure. It is weeks of spotlight, months even. And what people do with that is important. Maybe it is all that’s important.
Kelsey is ready. “I hope that it fires up and ignites something,” she says. She wants it to be more mutiny than march, this thing rising up in her name. A shift to define all the ones that will follow. She has started to dream about the date. With the kids still squealing on the swings behind her and her bike against the table, ready to carry her to a meeting with a friend, she describes how October 29 came to her in her sleep, the big OCT—also the acronym of her lawyers’ organization—dancing toward her and a feeling of excitement building until she woke and it spilled into her life.
Kelsey is like every other plaintiff in the case this way: in the months and weeks before trial, she is preparing to step into the spotlight and hold it in a way that can spur real change. All the ingredients are there. The Parkland shooting has just happened, an active shooter killing fourteen students and three teachers at Marjory Stoneman Douglas High School in the town in Florida, and the survivors are galvanizing similar social change in the aftermath. Emma González, who “called BS” on political reaction to gun violence after the massacre, has launched the Never Again Campaign. And David Hogg, her friend and activist cohort, crushed Fox News host Laura Ingraham with a swift boycott of advertisers after she mocked him about a college rejection letter. Together with other of the Parkland youth, the duo are stumping for gun safety laws across sixty cities in sixty days, and creating the political climate that will soon lead to the passage of seventy-six state laws and increase youth voter turnout by 10 percent in November.
As this happens, the thing that is coming into view for Kelsey and many of the other plaintiffs is that they stand at a very similar nexus: a place where political inaction and youth frustration are building high enough to boil. While young activists are taking to social media and building voice and momentum around important things that lack both—gun violence, Black Lives Matter, Standing Rock, climate change—Juliana is beginning to trend.
It helps that Our Children’s Trust is putting a lot of effort into ginning up the social media mill, dedicating staff to riding the #YouthvGov hashtag with trial updates and picture quotes from the plaintiffs. Bankrolled by left and the moneyed left, including celebrities like Leonardo DiCaprio, the Juliana case has in its arsenal several not-so-distant connections to celebrity and the attending audience. By proxy, the amplification that could come with Hollywood once Hollywood gets hold of the case is not far off. And in this, it seems Juliana is a sleeping giant slowly waking.
Big names like Ellen DeGeneres are already pushing the news through their channels, signaling an upcoming media pile-on. Nearly every teen glossy and trendy digital news magazine has had at least mention of the case, if not a profile of a plaintiff or a write-up of the litigation. And once these outlets are on the bandwagon, they tend not to stray. Briefs and updates. Tidbits of legalese in anticipation of the next. Which means that if SEO and social media are about to be as weaponized as the amicus brief, the case could be propelled onstage and onscreen in ways that even Johnnie Cochran, master of the courtroom media spectacle, could never have fathomed.
Daily news outlets and wire services are already betting on it big, with Reuters (that’s me), the New York Times, the Washington Post, and others planning trial coverage that includes extended stays in Eugene and a healthy dose of pretrial jockeying for space in the courtroom. The documentary crew has also been following the plaintiffs for years, recording what is likely to be history one day. And for the Our Children’s Trust podcast, several of the plaintiffs are carrying USB recorders, memorializing their daily thoughts to a team of audio producers.
Now, the news cycle is poised to dive into the case. And in these ways, the Juliana twenty-one have the perfect luck of both timing and age. Most are too young to vote. And they filed their case against the Obama administration, not Trump. Both facts mostly quiet the charge that they are politically motivated. That they are too heartfelt, too real, too young to smack in public is just a bonus. In a few short weeks, the media will turn its bright eye toward them and the stage will be theirs.
Kelsey wants them to really own it.
———
Some of them already do.
Xiuhtezcatl (shoe-TEZ-caht) Martinez, namely, has had a microphone in his face since he was six. The footage is on YouTube—videos of him standing on an open-air stage rallying tie-dyed crowds over the fate of the planet as a pudgy, squeaking little kid. Later, he would become the youth director of Earth Guardians, spurring hundreds of chapters in fifty countries, and speak to the General Assembly of the United Nations. He has already been a two-time guest on Bill Maher, has appeared on The Daily Show, and lately has been shirtless in a Vice i-D brand profile and sporting new kicks in an Adidas campaign. If you know him, know what he looks like, it is not at all odd to see him while you are moving around in the world, his long dark hair on some billboard or in yet another photo in yet another magazine. His hip-hop career is accelerating from where his leadership post with Earth Guardians left off, and he is certainly a staple in a media diet if not yet an icon.
Which is what makes a thing that happened the summer before the trial especially odd, and perhaps lends credence to Kelsey’s notion that the trial could ignite something bigger than the climate cause had yet. It was a simple, seemingly benign exchange on Twitter, the opposite of viral.
August 12, a tweet from Donald Trump: “Xiuhtezcatl’s new EP is fire, so hot it’s making me believe in climate change.”
Xiuhtezcatl’s response: “#NotFakeNews” and an emoji pointing to a link to the EP.
Actually this wasn’t a real exchange, it was a meme. But I couldn’t tell, a fact that underscored the widening gap between expectations and actual events, especially where the president was concerned. That this tweet could be a meme or just another day on social media, Xiuhtezcatl caught up in the momentary glare of a president who can’t resist a good digital row, was indiscernible. Despite the fact that Xiuhtezcatl was seventeen years old at the time and the president was a bona fide senior citizen, the specter of the impending trial made this digital tête-à-tête especially possible. Donald Trump and Xiuhtezcatl were not merely contemporaries in pop culture stardom. They were adversaries, too, with Xiuhtezcatl prominently named in the lawsuit alongside Kelsey and angling to face the Trump administration in federal court.
It was not out-of-bounds to think Trump had bestowed on Xiuhtezcatl the dubious distinction of being held within a close but albeit large sphere of presidential frenemies. Spats with Rosie O’Donnell were the barometer of the day, proof that celebrity was all it took to ascend to this digital club of executive sparring partners. With Aztec looks that played as well in a tuxedo as in jeans, Xiuhtezcatl was fast becoming a favorite to name-drop among name-dropping environmentalists who had perfected the pronunciation of his name. His message still about saving the planet, it seemed he might be worthy of watching, of tweeting about and perhaps skewering later by a president with a gift for manipulating public perception. It seemed reasonable that Trump could see these young plaintiffs rising into the epicenter of a weak spot. The president was already failing to control the message around the Parkland shooting and to lure the spotlight away from the young people who were ambushing his status-quo agenda on guns, poised as they were to set law and precedent in state after state. Now this hip-hop artist, this spokesman for the climate crisis, was coming into view. Maybe he was an opponent worth besting first. Maybe all of them were.
Every day the rules were being remade by a leadership that did not like the old ones. The truth was suddenly malleable, the press an enemy of the people. Russia was in, Europe out. Coal was cool again. And the authority of the courts was being eroded by insults and appointments, with Trump alternately nominating federal judges and slamming the court system overall, calling it “slow,” “political,” “a joke,” and “a laughingstock,” even blaming it for terrorism and charging that judges were some of “the most dishonest people in the world.” He was particularly frustrated with the “outrageous” Ninth Circuit, in which Juliana was unfolding, complaining that his opponents chose that “broken and unfair” venue to procure the decisions that most vexed him. He openly mused about how to break up the court and said he was considering proposals to do so. All the while, it was as though the playing field were being shifted, the lines redrawn. It was hard to trust in expectations.
Who knew what spectacle loomed. These possibilities underscored the peculiarity of the hour: a crisis at hand and a nation consumed with whatever strange thing its president would next do.
———
The next time I see Kelsey we are at the rally on October 29, and it’s as if the whole planet has shifted from where we last stood on it, the crowd roving behind her, moving from the speeches on the steps of the courthouse to a stage across the street. After the attorneys have spoken and the plaintiffs are taking turns at the podium, she is on her crowd high, zipping between the people who want to talk to her and the other people who want to talk to her. She stops to give me a comment for the story I will file imminently and says, “It just occurred to me I don’t even know where my phone is. Or my purse. People are trying to track me down and I can’t even track my own shit.” She doesn’t seem worried. Though we are still in the street in front of the courthouse, it feels like a party in someone’s very large yard.
Juliana had been set for trial in the US District Court of Oregon since April, but the Department of Justice had asked the Supreme Court to throw the case out of the lower court as the October 29 start date neared, claiming the trial was too burdensome and the court lacked the jurisdiction to call for such a sweeping review of executive branch powers. Attorneys also had told the Supreme Court there is no such thing as a constitutional right to a stable climate.
At first there wasn’t much to fear—this had happened before. The government had already asked the Supreme Court to toss the lawsuit back in July, and had three times asked the Ninth Circuit Court of Appeals to do the same. The legal maneuver—called a writ of mandamus, an emergency writ—is a heavy-handed one, a rarely used weapon wielded by persecuted parties to petition a ranking court for relief from a subordinate court, one that’s harassing them. But despite its more tempered uses elsewhere, this was the fifth time the Department of Justice under Trump had tried to use an emergency writ to argue its way out of the Juliana trial. The behavior underscored the president’s commitment to reducing the judicial branch’s powers to check his administration. The plaintiffs had won every time.
Legal experts would later call the delay a Trumpian attack on civil procedure and the courts, nothing less than a siege. In the sixteen years before Trump became president, the writ had been used just eight times—in emergencies during both the Bush and the Obama administrations. Since Trump’s inauguration, it had already been used twenty times, half of those the month of the would-be Juliana trial. The tactics were replicated in other cases close to the president’s agenda: the Muslim air travel ban, the ban on military service by transgendered people, the challenge to the rights of young Dreamers to remain in America, and the call for a citizenship question on the US Census.
This kind of unprecedented aggression—using a stacked Supreme Court to subtly pressure lower courts to dispense with litigation—had the destructive side effect of fatiguing attorneys and plaintiffs, scrambling court calendars, and delaying trials just for the sake of delay. It was hard to know how it would end.
The last stay had dragged on for a year, and the jitters are palpable. Everyone seems to know that the Supreme Court will rule in the plaintiffs’ favor as it did unanimously in July. Still, the controversial swearing in of Justice Brett Kavanaugh three weeks earlier had the press chasing legal experts, some of whom now presumed the Supreme Court’s rulings would be different. With the media awash in reactionary what-ifs, few can escape the feeling that although all signs point to a trial that is imminent, the signs are not to be trusted.
I ask Kelsey how she feels about the delay.
“The delay is just, it’s like fuel to the fire. It makes the government look desperate in their self-interest, which is exactly what it is, its desperation to preserve their self-interest of continuing a system of the usual, which is a system of exploitation and corruption,” she says. “It makes us just mad as hell and ready to get in there even more.” Yes, she wants to be in trial today. So do all the other plaintiffs. But by the time that happens? Now she figures they can double the crowd, work out the kinks. Maybe they needed a test run.
Some version of this plays out throughout the day: plaintiffs angry about the delay who see their government as an aggressor.
“It’s definitely indicative of how the government has been acting this entire time,” Vic Barrett says, the plaintiff from White Plains, New York, whose grandparents’ Honduran home is being washed away by sea. “They have no intention of looking at the evidence that’s right in front of them, so it’s really disappointing but not surprising that they are going to such extremes to prevent the trial from happening.”
The rest of the time the plaintiffs are just glad to see each other. There are hugs and huddles and—during breaks in the speaking and the performances—a lot of shoulder-to-shoulder pacing. They have forged unique bonds around climate activism and the bullying, stress, and blowback some of them have endured since joining the case. Being a plaintiff is, for many, more intense than they’d expected.
The initial targets of the lawsuit were President Obama and Obama-era appointees, the initial aim to provide a legal framework to an administration that showed some interest in reining in climate impacts. And at a time when entanglements between energy interests and the federal government seemed to be shifting, however entrenched they still were.
But then Trump happened. And instead of facing President Obama and appointees like Steven Chu, the former energy secretary who’d once conceived an alternate economy based on plant glucose, the plaintiffs are up against a president who stumped for coal in West Virginia and a cabinet of climate change deniers and former fossil fuel industry executives. Fiction could not have crafted a better cast of villains. There is Secretary of State Mike Pompeo, who has publicly waffled on the existence of climate change. Then Secretary of Energy Rick Perry, who is spearheading efforts to increase coal production. Secretary of the Interior Ryan Zinke, who has increasingly opened public lands to oil, gas, and mineral extraction. And then there is President Trump himself, who has set benchmarks for drilling and fracking beyond what markets can even bear; stripped the EPA of its regulatory powers over air, water, and cars; gutted budgets and international agreements and muzzled scientists; even scrubbed the words climate change from public documents, websites, and policies. Other cabinet members in Trump’s fickle administration have similar leanings—former EPA head Scott Pruitt once told an interviewer that “humans have most flourished during times of warming trends”—and have since come and gone as Juliana defendants amid fleeting tenures as government appointees.
All of them are worth shouting about on the steps of a courthouse.
———
While the shouting starts to give way to music, I do as journalists do and write the day’s events down, synthesize them, and feed it all to the machine.
I have not yet digested the news that after today I will be suddenly unemployed. I’m still in a frame of mind I adopted some months ago when I decided to drop a longtime contract gig to focus on covering this case. At the time, the trial was still ahead and I’d been salivating over the court record for months, meeting the plaintiffs in the regions where they live. Juliana v. United States was the Scopes trial—the 1925 trial that let evolution be taught in schools—of my lifetime. It was a trial to command the news cycle and captivate millions. I decided I was going, then started shilling for commissions—emailing editors and drumming up assignments. Suddenly editors who were never interested in my work were very interested in my work. It was the plaintiffs, of course, who drew them. And this climate crisis that we could dimly see was boiling to frustration among the young.
Through the speeches and the note taking, the sidebar comments and the music and the cheering, I am only barely beginning to realize that the trial will not go ahead as planned, and that I am unemployed, zilch for commissions, living alone in the woods with a hefty cat named Larry and some very mean raccoons. Instead of panicking, I find myself distracted by the thought that has been on my mind for days: that tens of thousands of plant and animal species will be facing extinction within the year thanks to human activities and global warming. And even though the raccoons are faring well—proliferating even—as the earth’s temperatures warm, American raccoons are moving north into Canada and raccoons in other parts of the world are leaving hot zones in favor of cooler ones. They are good at adapting—eating from the cat bowl and so forth—but that is not the issue. The issue is that the raccoons are being labeled “invasive,” which is what the humans call you right before they start to kill you. Or send you off to Trash Island like in a Wes Anderson movie. And now thanks to plastic, Trash Island is a real place, lately the size of Texas. It even has a name—the Great Pacific Garbage Patch—and with this moniker has seemingly joined a league of continents. I imagine if we could ask them, the raccoons would be sick of this lens—the one through which all the rest of nature bends to human invention and will. I am sick of it too. It’s why I wanted this trial. Why a lot of people wanted it.
Some of the plaintiffs have gotten hoarse making speeches, and the youngest, Levi Draheim, being the most energetic and the least equipped for the weather in a shiny blue sport coat, expends his angst by pedaling the bicycle-powered sound system under the pop-up tent. In short order, Kiran takes to the stage and plays a mandolin to guttural, self-styled lyrics about the case while Levi and Kelsey lose themselves in the dancing. Blue sport coat next to green blazer, busy black pants and shoes.
Three years later, now we had a date in court.
That doesn’t mean we’ve won,
no this fight is never done.
So I hope that I will see you in the streets.
In between are poems, a two-part spoken word performance, an oral presentation by a class of fourth and fifth graders, and words from the mayor about how several of the local plaintiffs cut their activist teeth by lobbying her for what’s now the nation’s strongest local climate ordinance. At points, the Indigenous peoples in the crowd bring their own mojo, calling “Native Americans are here—Ah-ho!” so that the response call “Ah-ho!” drifts on the day like the contact calls of birds, support for the plaintiffs with Indigenous roots.
Everybody talks about how important it is to show up, to keep showing up. So all day long, they show up.
Jacob Lebel, one of two plaintiffs who are rural farm boys from southern Oregon, steps to the microphone in a suit jacket and ponytail and says what a lot of the plaintiffs seem to be thinking. That he isn’t deterred by Trump. That this isn’t what he’d expected, but it is where he needs to be. “The wildfires around my farm in Oregon keep getting worse, the winters keep getting warmer, the salmon keep dying, the glaciers in Nathan’s home keep melting, Jayden’s home keeps flooding, the seas keep rising, and our politicians keep lying.”
His voice rises on that last word, and it seems like everyone cheers. They are activists from climate action groups, local hippies, and children who marched from nearby schools. Six of the plaintiffs are from Eugene, and the community has come to think of the case as its own. It’s an important thing for a community to hold, so everyone tries to hold it and overlook the fact that instead of going to trial, the plaintiffs are lining up for speeches and photo ops.
It is a bold show for a group of young people who’ve been bullied out of their right to a trial. And it reverberates around the world. Thanks to connections with 350.org, supporters rally in more than seventy venues—holding demonstrations in every state and in Stockholm, London, Amsterdam, and Uganda within the week. While young voices take to microphones and banners wave, social media and the rest of the media light up with the noise. All of it buoys the plaintiffs, who wear bright faces and cheer themselves on instead of lamenting that they are having a protest instead of a trial. They make firm statements about how they will get their day in court, how this isn’t over, how moral imperative and the state of the planet demand that they be heard.
It’s hard to tell, though, how many of them really believe the court will someday hear them.
In the days afterward, after the ice cream wears off, and the movies and the hangouts are no longer sufficiently distracting, there are tears. In between, an Airbnb fills up with snack food like an episode of MTV’s The Real World while the out-of-town plaintiffs wonder whether to stick around or go home. No one knows how long the delay will be. Or if it will turn out to be permanent.
What begins today is a tedious wait that will drag on for years. Through the next one, the urgency of the plaintiffs’ question will only become clearer.