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The eroticism and female imagery in nineteenth-century art linda nochlinkids just got some bad news.

Twenty-one children, adolescents, and young adults — all between the ages of 11 and 23 (as of June 2019) — sued the federal government in an unprecedented climate lawsuit in 2015. The youth argued that the U.S., by supporting an energy system that emits potent heat-trapping greenhouse gases into the atmosphere, infringed upon their constitutional rights to a stable future.

But on Friday, their lawsuit got tossed out.

The case bounced around the labyrinthine legal system, even making appearances in the Supreme Court. At one point, the Trump administration asked that the case be tossed out. Now, a powerful federal Court of Appeals for the Ninth Circuit in Oregon ruled that the case, Juliana v. United States, will not be allowed to proceed. The case, had it not been thrown out, would have essentially put climate science on trial.

The three-judge panel, in a two-to-one majority decision, decided that the legal system isn't equipped to deal with such an unprecedented and far-reaching problem like climate change. Judge Andrew D. Hurwitz conceded that the young plaintiffs "presented compelling evidence" that "the federal government has long promoted fossil fuel use despite knowing that it can cause catastrophic climate change..." Yet, Hurwitz concluded, "reluctantly," that need for ambitious governmental action must be taken by up by "the political branches of government" — meaning Congress and the president.

Given the Trump administration's fight to kill this lawsuit and its continued efforts to undermine environmental protections, the current White House is unlikely to help. Neither is a historically dysfunctional Congress.

Many legal experts think the case should have, at minimum, had its day in court.

"Throwing the case out without hearing a single bit of evidence is outrageous," said Patrick Parenteau, a professor of law and senior counsel in the Environmental and Natural Resources Law Clinic at Vermont Law School.

"Throwing the case out without hearing a single bit of evidence is outrageous."

The kids' case should go through the normal legal process, emphasized Parenteau, who had no involvement in the case. This means allowing climate science, and the increasingly stark risks posed by extreme weather, to be recorded in court and weighed by a judge. "That's the way the court system is supposed to work," he said.

The odds that another federal court will reconsider the ruling are small. But, the Trump administration's repeated denial — of both climate science and the government's responsibility in facilitating the planet's accelerating climate disruption — is all the more reason why the judicial system should properly scrutinize the administration's claims, explained Parenteau.

"They’re denying everything," he said. "That’s why you have a trial."

"I think the right decision is clearly to let the trial go forward," said Kassie Siegel, director of the Center for Biological Diversity's Climate Law Institute, who had no role in the case.

The dissenting judge, Judge Josephine L. Staton, agreed the case should go to trial. In an impassioned dissent, she wrote the U.S government should not have the "power to destroy the nation."

"In these proceedings, the government accepts as fact that the United States has reached a tipping point crying out for a concerted response — yet presses ahead toward calamity," Staton wrote.

"It is as if an asteroid were barreling toward Earth and the government decided to shut down our only defenses," she added. "Seeking to quash this suit, the government bluntly insists that it has the absolute and unreviewable power to destroy the Nation."

But the case has been stopped dead in its tracks. Though, the young plaintiffs and their attorneys will still appeal the big decision.

"We will continue this case because only the courts can help us," Levi Draheim, a 12-year-old plaintiff, said in a statement. "We brought this lawsuit to secure our liberties and protect our lives and our homes. Much like the civil rights cases, we firmly believe the courts can vindicate our constitutional rights and we will not stop until we get a decision that says so."

The kids' argument

The kids did not sue the U.S. for its failure to act on climate change — something that the current administration candidly has no interest in doing.

Instead, they sued the government for supporting a fossil-fuel dominated energy system, specifically by allowing fossil fuel extraction on public lands, importing and exporting these carbon-rich fuels, and subsidizing the oil industry. It's a real problem because atmospheric concentrations of carbon dioxide, the planet's most influential greenhouse gas, are now amassing at rates that are unprecedented in both the historic and geologicrecord.

"It is as if an asteroid were barreling toward Earth and the government decided to shut down our only defenses."

And a heated planet, with more energy swirling around, has well-understood consequences. This means stark drought in the West, a boost in extreme deluges and consequent flooding, damage to crops, and the melting of Earth's great ice sheets.

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The kids (who are plaintiffs in the case) are experiencing the adverse effects of these environmental developments, or in legal parlance, have "injury." It's not hard to prove.

"We have on-the-ground harm that has been occurring to the kids in front of the court," said Ann Carlson, the director of the Emmett Institute on Climate Change and the Environment at the UCLA School of Law. "It's gotten much easier for plaintiffs to get evidence to establish [legal] standing."

Young plaintiffs inside a San Francisco courtroom. Credit: ROBIN LOZNAK / OUR CHILDREN's trust

One plaintiff in Louisiana said she awoke one morning to ankle-deep water flooding her family's home during an unusually severe storm. The floodwaters rose, and sewage soon poured through the house. The floodwaters didn't recede for weeks. Another argues that hotter, drier conditions exacerbates her asthma.

"The government argument is just terrible."

But the government's Department of Justice lawyers argued in court in early June that these youth have no claim to injury from climate disruption, and associated extremes in weather.

"To try and tell the judges these young people have no injuries is ridiculous," said Parenteau. "The government argument is just terrible."

The judges' dilemma

The two federal judges that decided to throw out Juliana v. United States are in a tough position. At an early June hearing, the judges — all appointed to their positions by President Obama — took the kids' claims of injury and an infringement of their future rights quite seriously.

"I felt [the judges] wanting to do something about climate change," said Carlson, "but struggling to find a way to do something about it."

It's a tough decision for judges, because if they allowed the case to go to trial, they would be doing something unprecedented: establishing that Americans have a constitutional claim to a stable climate. That's a new constitutional right, noted Carlson. And federal judges don't hand out new rights like candy.

Skyrocketing carbon dioxide levels. Credit: SCRIPPS INSTITUTION OF OCEANOGRAPHY

Especially because they have another court looming above them -- the Supreme Court -- which is unlikely to accept such a new inalienable right. The greatest court in the land now has a conservative majority including two appointees from President Trump. "If I was a betting person, I would bet [the Supreme Court] would find there is no constitutional claim [to a stable climate]," said Carlson.

"The circuit judges are thinking about what today’s Supreme Court will do," agreed Siegel. "Everyone acknowledges that the five hard right justices will vote to rule against the plaintiffs."

The right to a stable climate

The judges, after over half a year of deliberation, may have thrown out the case. But that doesn't necessarily mean these kids, and Americans generally, aren't constitutionally entitled to a stable climate.

The Founding Fathers included a number of invaluable freedoms in the Bill of Rights, but they couldn't think of everything 230 years ago. That's why the court grants "unenumerated rights" -- rights that aren't written down but are inferred from the constitution. These include same-sex marriage and the right to privacy, explained Parenteau.

"There are lots of rights that we take for granted that didn't exist," he said. "The founders would have listed them if they had thought of them."

Legendary NASA scientist James Hansen speaks in front of the plaintiffs at a federal courthouse in Eugene, Oregon. Credit: ROBIN LOZNAK / OUR CHILDREN'S TRUST

A globally disrupted climate — created explicitly by human activity — should not be an inevitable reality future Americans have to bear, noted Parenteau. Though, curbing world temperatures at levels that would limit the worst consequences of climate change is a mighty, mighty task.

"It's more profound and wicked hard than ozone depletion," he said. "But the consequences of runaway climate change are terrifying."

Yet, would the courts ever step up to the plate to help solve the problem, similar to how the Supreme Court in the 1950s told states that school segregation was unconstitutional?

"Of course the courts don’t view themselves as policymakers or lawmakers," noted Parenteau. "They're certainly not supposed to be making national policy."

"But when the other two branches are comatose or worse, you have to have the courts step in," he said.

SEE ALSO: We're probably not going to hit the world's most important climate goal

A recent, compelling example of the courts getting involved is the 2011 Supreme Court case, Brown vs Plata, involving harrowing conditions of overcrowding in California prisons. Prison conditions amounted to "cruel and unusual punishment," the Supreme Court ruled, forcing the state to release tens of thousands of inmates.

"[The courts] get involved if there’s a constitutional violation," said Siegel. "The court has to step in."

"Brown vs Plata is so analogous to what’s going on here, only climate change is so much bigger," she added.

In the case of climate change, courts can tell the U.S. government to change its behavior, or require them, by court order, to come up with a plan to limit warming. "They could say there's a constitutional duty for action," explained Parenteau.

The ocean's heat content just keeps going up. Credit: noaa

Still, the courts can't literally force the other two branches to actually stop carbon emissions. "The courts don't have an army," noted Parenteau. But they do have powerful influence, similar to their rulings about desegregation in the 1960s. "It's been historically true that the courts have been respected," Parenteau said, even with enormously and still hotly debated and litigated decisions like Roe v Wade, which protected a person's right to have an abortion.

For now, the kids' climate trial may have been given a powerful setback, if not complete defeat. It's unlikely the Supreme Court will take up any petition to review this Court of Appeals decision, noted all three legal experts. So the decision likely stands, for now.

Yet, this isn't the end for all climate trials. There are a slew of lawsuits taking place in states and cities around the country, often involving local governments suing fossil fuel companies for the damages wrought by floods, droughts, wildfires, and other extreme weather.

With a Congress paralyzed by climate inaction and a presidential administration that has resolved to leave the historic Paris agreement in November, the courts may need to play a prominent role in influencing the government to slash carbon emissions — should the judicial system want to heed repeated warnings from atmospheric scientists, geologists, and researchers globally.

"If the courts are not going to have any role in addressing this problem, where does that leave the country?" wondered Parenteau.

UPDATE: Jan. 17, 2020, 4:47 p.m. EST Updated with a statement from plaintiff Levi Draheim.

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