Right now, anxiety is sweeping across the scientific community about the Trump administration’s efforts to make climate data disappear.
However, there are now a very special group of 21 young Americans, ages nine to 20, who are throwing a sizable wrench in the Trump administration’s plans. Their lawsuit against the federal government and fossil fuel companies seeks to hold them accountable for failing to adequately address human-caused global warming despite widespread knowledge of the risks.
The case, formally known as Juliana v United States, is scheduled to go to trial sometime this year, and has already set groundbreaking legal precedents in the nascent field of climate change law.
On Wednesday, lawyers for the young plaintiffs hit the government and fossil fuel industry with a letter that could make it much harder for the Trump administration to take websites offline without archiving them.
An expansive case
The students’ lawyers delivered a legal preservation notice to fossil fuel companies such as ExxonMobil, industry trade associations and the federal government.
Because the case is extremely expansive in scope — it seeks to prove that the government and energy industry knew about the dangers of burning fossil fuels for decades, yet continued to promote a fossil fuel-based energy system — any destruction or hiding of scientific evidence by the Trump administration could threaten the students’ ability to make their case.
And if a judge agrees with the kids, taking down the websites without archiving them could lead to monetary and trial penalties for the defendants. Depending on the climate data, some federal laws may restrict the information scrubbing.
“The U.S. Department of Justice and Sidley Austin are required by law to preserve all documents, including electronically stored information, that could be relevant to our 21 youth plaintiffs’ case against the Trump Administration,” said Julia Olson, executive director of Our Children’s Trust and attorney for the plaintiffs, in a statement. Sidley Austin is the law firm representing the private sector defendants, which also include trade groups for oil and gas companies.
Olson and other attorneys filed the notice after news reports regarding impending changes to the Environmental Protection Agency’s (EPA) climate change website as well as gag orders placed on the agency and Agriculture Department.
“We are concerned with the new administration’s immediate maneuver to remove important climate change information from the public domain and, based on recent media reports, we are concerned about how deep the scrubbing effort will go.”
“Destroying evidence is illegal.”
“Destroying evidence is illegal and we just put these new U.S. Defendants and the Industry Defendants on notice that they are barred from doing so,” Olson said.
The notice covers the destruction of any documents related to the case, including deletions related to the change in presidential administration.
Keep it in the public domain
The letter, which was also sent to the Justice Department, says any deletions make the document discovery process of the trial “harder, causing unnecessary delay” by forcing plaintiffs to make formal requests for information, which take longer and are more costly.
“Plaintiffs hereby request that those Documents … and other records be returned to the public domain and the federal government’s worldwide web domain,” the notice states.
The plaintiffs’ are seeking to protect a sweeping array of information that could limit the Trump administration’s plans for broad website changes at agencies like the EPA. This includes the following types of information:
All Documents related to climate change since the Federal Defendants or the Intervenor Defendants (and their member companies) became aware of the possible existence of climate change.
All Documents related to national energy policies or systems, including fossil fuels and alternative energy sources and transportation.
All Documents related to communications between the Federal Defendants and the Intervenor Defendants (including their member companies) regarding climate change.
All Documents related to communications between the Federal Defendants and the Intervenor Defendants (including their member companies) regarding national energy policies or systems, including fossil fuels, alternative energy sources and transportation.
The case already established a landmark precedent when U.S. District Court Judge Ann Aiken ruled in November that by failing to stem global warming, the government and fossil fuel industry may have violated the young plaintiff’s constitutional rights.
Phil Gregory, the kids’ co-lead counsel and a partner at Cotchett, Pitre & McCarthy in California, told Mashable that it’s unclear if federal agencies have been told about the document preservation request through their lawyers’ offices, but that they should be.
“We hope the defendants have taken their preservation obligations seriously,” he said. The defendants haven’t responded to the notice nor Mashable‘s request for comment as of this writing.
If the Trump administration were to take down federal websites on climate change without preserving them at the National Archives, they could be hit with sanctions ranging from prohibiting the removal or destruction of files to the imposition of penalties or costs, Gregory said.
The penalties could be harsh for deleting data without archiving it, he said, noting: “In an action involving Phillip Morris in Washington, D.C., a district court found that the corporation had failed to abide by a court order to ensure preservation of computer e-mails. The court imposed sanctions that precluded the company from calling a key employee at trial, and it ordered the corporation to pay [improper document destruction] costs and over $2 million in monetary sanctions.”
Another sanction could come as a judge “informs the jury that it may infer that the offending party destroyed evidence that was harmful to that party’s case. Such an instruction often ends litigation because it is ‘too difficult a hurdle … to overcome,'” Gregory said.
Michael Gerrard, who directs the Sabin Center for Climate Change Law at Columbia University Law School, told Mashable in an interview that he agrees the notice could lead to serious consequences if it is violated, and that this is not an empty gesture with little legal effects.
Not out of the woods yet
However, it is still possible for the EPA to take its global warming page, and other websites, offline while still complying with this order, provided the websites and data they contained are archived and accessible to the plaintiffs.
“It would not violate the ‘document hold’ to take down a website but make sure the records it had displayed still exist so that they can be retrieved and produced if necessary,” Gerard said.
Few people other than the political “landing teams” at federal agencies seem to know what plans there are for website changes when it comes to climate change. And even they are changing their minds from day-to-day.
The students hope their notice will force the government to consider the consequences of such website alterations, before invaluable data goes dark — possibly forever.