It seeks no monetary damages, just solutions. And to hold accountable those who knowingly violated future generations’ rights to life, liberty, and property.
When Phil Gregory J.D./MBA ’80 first walked the Santa Clara campus as a student, Elvis Presley had just died. The new Apple II computer had just gone on sale. And the first of billions of gallons of oil began to flow through the Trans-Alaska Pipeline—one of many huge projects supported by the federal government to promote U.S. growth and energy independence.
Forty years later, Gregory is the co-lead counsel for a novel environmental lawsuit. It seeks to hold the government accountable for the cumulative impact on the environment from decades of unfettered federal support for projects like the Alaskan pipeline. His clients, a group of nearly two dozen children now aged 10 to 21, say the current planet-threatening level of carbon dioxide (CO2) was foreseen decades ago by the federal government, and could and should have been the subject of federal planning and mitigation. Failure to do so, they say, has violated the constitutional rights of future generations to “life, liberty, and property.”
Advocates have called the case possibly “the most important lawsuit on the planet” and “the trial of the century,” with the historical reference to the Scopes Monkey Trial very much in mind. Some charitable skeptics call it “a legal moonshot.” Other legal experts argue that the case is legally overreaching and runs afoul of separation of powers as defined under the constitution. They also point out that, essentially, the suit asks a U.S. court—impossibly and singlehandedly—to force the executive branch to take action to solve the worldwide problem of climate change, with potentially devastating consequences to the U.S. economy. Either way, most would agree, the stakes are epic.
The plaintiffs allege that the defendants—including the President of the United States, Department of the Interior, Environmental Protection Agency, and 19 others—have for decades known about the atmospheric dangers of CO2 emissions. Yet not only did they fail to act to stem emissions, collectively they have aggressively supported and promoted fossil fuel exploration and use. “Defendants have failed to preserve a habitable climate system for present and future generations,” the lawsuit asserts, “and instead have created dangerous levels of atmospheric CO2 concentrations. The affirmative aggregate acts and omissions of Defendants, jointly and severally, have violated and continue to violate Plaintiffs’ fundamental constitutional rights to freedom from deprivation of life, liberty, and property.”
The case, Juliana v. United States of America, was filed in a district court in Eugene, Oregon, in 2015. It has survived numerous challenges and — pending a ruling on one more extraordinary writ — has been cleared for trial to begin Feb. 5, 2018. It seeks no monetary damages. Rather, it calls for other remedies from the federal government. Among them: a federal climate recovery plan to vastly curb atmospheric CO2 emissions, and a halt to multibillion-dollar subsidies for CO2-causing fossil fuels.
Attorney Phil Gregory first got involved with the cause of climate litigation starting in 2010. It didn’t go well.
A group led by Our Children’s Trust in Oregon needed trial lawyers to help them with a case, Alec L. v. McCarthy, under which they were pursuing a novel approach to environmental litigation. Our Children’s Trust called in Gregory and his law partner, Paul “Pete” McCloskey, who served in Congress (1967–83) representing the Bay Area and has had a practice as a successful environmental trial attorney. Now in his 80s, McCloskey has also lectured on political science at Santa Clara’s School of Law. In 2011, Gregory and McCloskey served as pro bono counsel and helped bring the ill-fated Alec L. lawsuit against the Obama administration. They argued at the time that the federal government had failed in its legal duty to preserve the environment in “public trust” for future generations. The case ended up being dismissed when the D.C. Circuit Court of Appeals interpreted a Supreme Court case, PPL Montana v. Montana, as quashing the “federal public trust” legal theory outright.
A NEW, “UNENUMERATED” CONSTITUTIONAL RIGHT
The same group, Our Children’s Trust, led by the group’s executive director and chief legal counsel, Julia Olson, is now behind Juliana, using a different legal tactic. It focuses on the constitutional rights of the young plaintiffs. Specifically, Olson and Gregory assert that there is an “unenumerated right” in the Constitution to inhabit a livable environment. That right has been violated by the federal government, they charge, because various federal entities: one, knew of the risk of CO2 emission; two, knew they had the power to halt the dangerous rise in CO2 levels; and three, knowingly failed for decades to protect the earth from reaching catastrophic CO2 levels.
“I have no doubt that the right to a climate system capable of sustaining human life is fundamental to a free and ordered society.”
In an extraordinary decision issued in November 2016 agreeing with the young Juliana plaintiffs and allowing the case to proceed, U.S. District Court Judge Ann Aiken wrote: “I have no doubt that the right to a climate system capable of sustaining human life is fundamental to a free and ordered society.” The 54-page decision was heralded as emphatic, historic, and groundbreaking—though one National Review headline groused that was true only if “‘groundbreaking’ means ‘insane.’”
Before retracing the legal path the case has traveled, here are a few snapshots of the young plaintiffs being represented in the case. Their fundamental claim: Climate change is damaging my life.
• Alexander Loznak of Roseburg, Oregon, is 20 years old. Record heat waves have threatened the viability of his family’s farm, and increasing wildfires are worsening his asthma and other health conditions.
• Miko V. of Beaverton, Oregon, is 16 years old. She fears the disappearance of her extended family’s home in the Marshall Islands, which are threatened by rising ocean levels from climate change.
• Nathaniel B. of Fairbanks, Alaska, is 17 years old and suffers from asthma and allergies—caused, he says, by increasing and chronic wildfires, which also threaten the family’s livestock.
• Jaime B. of Flagstaff, Arizona, is 17 years old and a member of the Navajo Nation. She has had to move due to water scarcity.
Scientists overwhelmingly agree that humans have contributed to climate change. But in a lawsuit like this, how can you prove that the government is culpable? The plaintiffs cite reams of evidence from government-issued documents: from the Lyndon Johnson administration to the Reagan administration’s White House Council on Environmental Quality and Department of Energy, to reports to President George H.W. Bush and beyond. The case was filed when the Obama administration was in office, and it was the first to defend against it.
The documents that will be submitted as evidence purport to show that the government both knew of the risk and considered it within its power to halt the dangerous rise in CO2 levels. But instead of halting the rise, the government actively promoted the rise of CO2, the lawsuit charges. How? By actions like issuing tens of thousands of oil-drilling permits on federal and private lands. Juliana notes that since 1985, the Department of the Interior has issued between 1,486 and 6,617 permits annually to drill on federal lands; and that the Bureau of Land Management approves about 99 percent of all received applications for permits to drill. The BLM disputes the 99 percent figure, saying that between 2003 and 2015 it approved between 77 and 91 percent.
In addition, Juliana plaintiffs argue that the U.S. spends billions in taxpayer funds to support fossil fuel production and exploration. Through 11 fossil fuel production tax provisions, they argue, the United States incurs billions in annual revenue costs; and forgoes about $3.4 billion annnually in revenue to subsidize fossil fuel consumption and $5.1 billion annually to support fossil fuel exploration. Including U.S. support for fossil fuels worldwide, the U.S. is the world’s top subsidizer of fossil fuels, to the tune of $502 billion per year, according to the International Monetary Fund.
Sitting in his office in Burlingame on a summer morning, surrounded by shelf after shelf of neatly organized white binders of government documents and reports—all evidence—Phil Gregory is eager to explain the urgency of the case.
“I always taught my children when we went camping that you want to leave the campsite better than when you found it,” he says. “The problem I see is that what we’re terming ‘progress’ is really not leaving the essential natural resources of our country, or our world, in better shape. It’s hard for me to believe that I can have an effect in Africa. It’s hard for me to believe I can have a direct effect in Antarctica. But I can have a direct effect on what happens in the United States,” he says.
And this case could have a profound effect on the laws of the United States. It is staking out the establishment of a new unenumerated constitutional right—a milestone moment in law. Consider other unenumerated constitutional rights we now take for granted. It was a case filed in 1922 in Oregon that led to the Supreme Court declaring that parents had a right to send their children to private school. The 1965 Griswold v. Connecticut Supreme Court decision ruled that a state didn’t have the right to interfere with marital privacy by prohibiting marital use of contraceptives. That case fundamentally established a right to privacy and subsequently led to key decisions on birth control, abortion, and same-sex marriage.
What about the right to a climate system capable of sustaining human life? Not everyone thinks this one will stick.
“I completely agree with the assertion that the constitution does not enumerate all fundamental liberties,” says Tseming Yang, a professor of law at Santa Clara who formerly served as deputy general counsel for the Environmental Protection Agency. As for Juliana, he says, “I just have a difficult time seeing how they win.”
Yang cites the most important climate change case to date, Massachusetts v. EPA, which forced the EPA to acknowledge it had authority to regulate carbon emissions. That case, filed in 1999, took seven years to prevail. It only resulted in concrete action under the more climate-friendly Obama administration.
“Even if you were to find a right to a livable environment or a good climate, I think the second and equally important—or equally difficult—issue is: What does that mean?” he says. “When we have rights, that means everybody has rights, and we balance rights against each other—including the right to make a living, to build ourselves an abode, to do all these other things. If this right was absolute, it would override everything. Our society would grind to a halt.”
Nonetheless, Yang sees tremendous value in the Juliana suit. “It’s a new legal theory, and having a U.S. court agree that these kids have a right that’s been impaired by governmental action, versus just an academic or an NGO saying it—that gives it a significant level of legitimacy that nobody else can really lend.”
A CASE ON PAR WITH CIVIL RIGHTS?
For his part, Gregory says Juliana’s constitutional argument is not so novel, if you consider other lawsuits that have successfully held the government responsible for perpetrating wrongs, including in the arena of civil rights and school desegregation. “It’s not a new case with new law,” he says. “It’s actually grounded in precedent of the civil rights cases and various other cases where there’s been a violation of constitutional rights.”
“It’s actually grounded in precedent of the civil rights cases and various other cases where there’s been a violation of constitutional rights.”
The power of the Juliana case, and another aspect it shares with civil rights cases, is that it is “going after the systemic problem,” as he puts it. “We are not going to be trying to save one polar bear at a time, or shut down one power plant. We are no longer going to play the game of whack-a-mole, where every time you shut the bad guys down one place, their heads pop up two or three places elsewhere.”
If they win, Gregory and co-counsel Olson are seeking remedies to the climate change crisis—such as halting new permits for oil drilling or mandatory reductions in greenhouse gas emissions over a given period of time. It will be up to the court to set goals—just as they have in civil rights cases, or in alleviating prison overcrowding in California. In fact, Gregory notes, the defendants already had goals laid out for them. They just chose not to follow them. But had the defendants followed the guidance of their own EPA and other entities over the years, CO2 emissions today would be reduced by 35 percent from 1987 levels. Instead, plaintiffs alleged, since 1991, the defendants have knowingly allowed at least an additional 130,466 million metric tons of CO2 emissions from fossil fuel combustion.
Gregory rejects the idea that the government doesn’t have the resources to mobilize to attack the problem.
“Let’s say we weren’t talking about climate. Let’s say we were talking about fascism. Let’s say we were talking about communism. This federal government, historically, mobilized against those issues.” Yet with the threat of climate change, he says, “We’ve known for decades that we’re facing a massive problem. And from a practical standpoint, nothing’s been done by the federal government to implement effective solutions to the problem. The situation has got dramatically worse.”
Few would have predicted that the case would get to this point—on the brink of a trial that could force the current administration to answer for decades of “destabiliz(ing) the climate system on which present and future generations of our nation depend for their wellbeing and survival.” So how did we get here?
After the case was filed in 2015, Oregon Magistrate Judge Thomas Coffin agreed with the argument made by Gregory and his co-counsel, using the “state-created danger” doctrine: that the federal government’s knowledge of the CO2 problem and failure to act on it cleared the way for the children to sue for violations of their constitutional rights. Without establishing such a clear cause-and-effect, the case would have been dismissed under longstanding separation-of-powers prohibitions against suing the federal government.
At the outset, the Obama administration argued for dismissal of the case. And as if it weren’t enough to take on the federal government, the nation’s largest petroleum trade groups—National Association of Manufacturers, the American Fuel & Petrochemical Manufacturers, and the American Petroleum Institute—inserted themselves in the case as “intervenor-defendants.” Essentially, they felt that a victory by the child plaintiffs would harm their business interests. It’s also fair to say that they didn’t trust the Obama administration to defend those interests strongly enough. The intervenor-defendants also filed a motion to dismiss.
In April 2016, Judge Coffin recommended that the court deny both motions to dismiss the case. His recommendation was part of the case then heard by District Judge Ann Aiken, a 1998 Clinton appointee. Gregory and Olson had to convince the judge that numerous arguments in the government’s dismissal request were invalid, including arguments by the Obama administration that the government was doing all it could already; that the children didn’t have “standing” to sue the government; that the case was essentially asking the court to act as environmental law-maker; and that the case was a “political” matter—not a legal one. The order, favorable to the plaintiffs on all counts, came down Nov. 10, 2016. The motions to dismiss were denied.
Two days prior, on November 8, Donald J. Trump was elected president. As the industry groups understood clearly, a new administration with very different views on climate change would take office in January. Aiken also asked the various industry groups to submit a joint statement in response to the climate science claims in the case. Instead, they asked to be removed as defendants.
The Trump administration inherited the case in January 2017. Not surprisingly, they do not want the case to go to trial. In March 2017, the Department of Justice sought “certification” from Judge Aiken in order to appeal her decision to the 9th Circuit. That was denied in June. Also in June, the court released the fossil fuel industry groups as defendants from the case. And a trial date was set for February 2018.
Immediately after the June rulings were issued, the Trump administration filed a highly unusual “writ of mandamus,” essentially an end-run around the district judge, asking the 9th Circuit to hear their appeal for dismissal anyway. That led to the case being stayed by the 9th Circuit in late July, and a request for clarification was heard August 28. In issuing its stay, the 9th Circuit focused primarily on one rationale given by the government for dismissal: that it faced an undue burden of discovery.
Gregory and his co-counsel at Our Children’s Trust argued that the discovery complaint stems from a misinterpretation. After the election, when longstanding EPA studies were being removed en masse from the official EPA website, plaintiffs reminded the government that, under rules of evidence, such studies—as well as a wide array of other types of evidence—needed to be preserved for the ongoing litigation. The government, Gregory says, is now claiming that the reminder constituted a demand for the full array of evidence.
FAITH AND FAMILY MOTIVES
Ask Gregory what motivates him to work an estimated 4,000 hours and counting, pro bono, on the Juliana case, and he flips around a photo of himself holding his infant granddaughter, Alice. Born to his eldest son John and his wife Sarah—daughter of Gregory’s law school classmate Mike Clark, J.D. ’80—Alice’s is the face that Gregory sees when he sacrifices time to this David versus Goliath effort.
Gregory says that when his granddaughter Alice is much older and he is sitting in his rocking chair, and she says, “What did you do during the climate wars, Grandpa?” he wants to say, “I was right out there on the front lines.”
“When Alice is much older and I’m sitting in my rocking chair, and she says, ‘What did you do during the climate wars, Grandpa?’ I want to say, ‘I was right out there in the front lines, taking all my free time,’” he says. “‘I didn’t get to babysit you, Alice, as much as I would’ve liked because I was off taking depositions and trying to get the federal government to toe the line.’ That’s what I want to be able to say.”
Gregory also says he is blessed to have the full support of his legal partners at Cotchett, Pitre & McCarthy. And he is fortified by his Catholic faith. “Both the pope’s position on stewardship of the earth, as well as the Council of Bishops in the United States, genuinely inspire me, and make me incredibly proud to be a practicing Catholic,” he says.
The feeling appears to be mutual. Among the handful of legal briefs filed by outsiders in support of the case is one from the Global Catholic Climate Movement, which is supported by Catholic leaders including Pope Francis and the Leadership Council of Women Religious. In support of the case, they wrote: “As people of faith and as citizens of the United States, we are deeply concerned about the policies, plans, and practices of the federal government, which do far too little to achieve the reduction in fossil fuel emissions necessary to ensure the health and wellbeing of our children and our planet home, now and into the future.”
They also wrote: “This litigation seeks to establish precisely what Pope Francis has urged in Laudato Si’,” his encyclical on care for our common home, published in 2015, “a ‘legal framework which can set clear boundaries’ for greenhouse gas reduction—before it is too late.”
BALANCE SHEETS VS. FITTED SHEETS
Gregory is a fit and active 63-year-old, with a deep, occasionally gravelly voice and an accent that still hints of time spent in New England. He’s quick to smile and answers many questions by jumping up and saying, “Here, can I show you?” When he’s fired up on a topic, he speaks with hands and eyes aloft, as if he’s arguing his case to a jury only he can see.
Gregory was born in Boston and raised in Maine and Los Altos. His father was a Raytheon manager who co-founded the trade association SEMI. His mother was instrumental in helping start Villa Siena, a home for elderly near St. Francis High School in Mountain View.
Gregory’s wife, Kathy, is a gynecologist in San Francisco. From his first marriage he has three grown sons: John, Matthew, and Mark.
His law career, and his affiliation with Santa Clara, began in 1977. After graduating magna cum laude from Bowdoin College in Maine, he headed back West with a gut feeling that he wanted to be a trial attorney taking on business cases. Small problem: “I didn’t know a balance sheet from a fitted sheet.”
So he set his mind to get both a J.D. and an MBA. He consulted with two judges, one a Santa Clara grad, one a Stanford grad. Both urged him to attend Santa Clara, partly because he could get both degrees in three years—important for a financially pressed student—but also because “there are better trial lawyers at Santa Clara,” he was told.
In law school, he served as articles editor of the Santa Clara Law Review, under then-editor Evet Abt J.D. ’79, where his first “comment” published was on the topic of the proper remedies for government-caused constitutional violations—a question at the heart of the Juliana case. Gregory also went to the national moot court competition during which he used a dramatic shoplifting reenactment to try to persuade the jury of the outrageousness of the charges against his mock client. He still loves to show, rather than tell. “It’s one thing to say a claim is outrageous, but the visual explanation is much more compelling,” he says. “It allows the explanation to resonate.”
Back when Gregory was a student at Santa Clara, he attended Mass regularly with friend Ken Linhares ’77, J.D. ’80, and he carried rosary beads in his pocket at all times. “I genuinely believe in the power of prayer,” says Gregory, who now keeps the beads in his briefcase. The rosary “helps me get through the best of times, and the most difficult times.”
He would later help start what is now the Catholic Professional and Business Club in the San Jose diocese, a place for Catholic professionals to meet, celebrate Mass and have breakfast, and hear from speakers on various sides of issues of importance to the Church.
One of his SCU Law classmates was Peter McCloskey J.D. ’80, who became a prosecutor in Santa Clara County, worked for the U.S. Department of Justice, then went to The Hague as a senior trial attorney at the International Criminal Tribunal for the Former Yugoslavia. Peter is son of then-Congressman Pete McCloskey—who spoke at their commencement and would later join Gregory at the firm of Cotchett Pitre & McCarthy. In addition to successfully trying more than 100 environmental law cases, McCloskey Sr. is the co-author of the Endangered Species Act and served as co-chair of the first Earth Day in 1970.
“Pete is an incredible environmental activist,” Gregory says. “He became my inspiration” for taking on environmental cases, he adds.
Gregory has long been an ambassador for Santa Clara Law. He recently helped mentor two paralegals—Celine Purcell J.D. ’15 and Joe Ferrari J.D./MBA ’16—to attend Santa Clara Law. They now work for Wilson Sonsini and Weil, Gotshal & Manges, respectively. He has served as a judge for moot court competitions, and he has taught numerous continuing legal education classes—both on campus and during road shows—on the topic of Ponzi schemes. He developed an expertise in such schemes after he joined classmate Mike Ioannou ’77, J.D. ’80, as a partner at Ropers Majeski Kohn Bentley in San Jose, and started defending people who had been financially defrauded. His current law partner, the famed trial attorney Joe Cotchett, founded a legal scholarship in Gregory’s name, for second- or third-year law students, especially those pursuing environmental law.
THE SCOPES MONKEY TRIAL OF OUR TIMES?
As Gregory prepares for trial, it is not lost on him that the term sometimes used for Juliana, “the Trial of the Century,” evokes apt comparisons to the 1925 Scopes trial—in which legendary trial lawyer Clarence Darrow took on firebrand William Jennings Bryan over the legality of teaching evolution in public schools. The Scopes case provoked extreme emotions. So does Juliana. And both cases pit widely accepted science against determined deniers. In the Juliana lawsuit, reams of documentary evidence show that the government was fully aware that CO2 emissions were heading to disastrous levels as a result of actions they took.
“The case is exactly like the Scopes trial,” Gregory says. “We are going to have the science, and they are going to have what they call ‘alternative facts.’
“But in this case, alternative facts are perjury.”
If the 9th Circuit dispenses with the writ of mandamus — which is still outstanding at press time — the case goes to trial the first Monday in February 2018 in Eugene, Oregon, before District Judge Ann Aiken. It will be tried on the third floor of the Wayne Lyman Morse United States Courthouse, a LEED-certified, glass-and-metal edifice overlooking the Willamette River.
Gregory estimates that he will spend four to five hours a day, seven days a week, preparing for trial. That includes deposing government officials and extracting non-public documents from the defense for evidence. It also includes working on witness reports from experts like Nobel Prize–winning economist Joseph Stiglitz; activist climate scientist and Columbia University adjunct professor James Hansen; and Naomi Oreskes, author of Merchants of Doubt—a book that includes a chapter on the role of petroleum companies in persuading the government to use taxpayer resources to support CO2-causing fossil fuels. Even Tseming Yang, the SCU professor who is doubtful of Juliana’s prospects, says he will be watching with interest. “This is an idealistic, legal moonshot, maybe,” he says. “But if it’s affirmed, I think this would be a game-changer, even if the Supreme Court ultimately struck it down. It would change the legal dialogue about all of this.”
DEBORAH LOHSE is assistant director of media and internal communications at SCU. She was previously a staff journalist at the Mercury News, Wall Street Journal, and Money Magazine.