Photo: AP

With under two weeks until the start of a historic youth climate trial, the Justice Department is still trying to wriggle out of defending the U.S. government’s inaction on climate change. For the second time in four months, it has petitioned the Supreme Court to stop the trial. This time, however, Brett Kavanaugh could have a say in the matter.

The last time the Justice Department put in a request for a stay, it was fielded by Justice Anthony Kennedy. Kennedy referred the request to the whole court and the decision to deny it came down a day before his retirement.

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The new request for a stay will go to Chief Justice John Roberts, who is currently providing guidance for the Ninth Circuit where the trial is set to take place. Roberts can rule on his own or refer the request to the whole court where Kavanaugh, Kennedy’s replacement, would weigh in.

It would be one of the first high-profile environmental law decisions of Kavanaugh’s tenure on the court that has begun under, shall we say, auspicious circumstances. While Kennedy filled the “swing justice” role, Kavanaugh has been reliably conservative and made Earther’s list as one of the worst potential justices on environmental issues before he was nominated.

While the court said in its July ruling that the case should go on, it also noted the scope of the plaintiffs’ claims was “striking” and that there are “substantial grounds for difference of opinion” about whether they should be heard by federal justice system. The new request for a stay and make up of the court could change the outcome this time around.

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That said, Meg Ward, the communications director for Our Children’s Trust, the group leading this and other state-level youth climate cases, told Earther that “counsel is not concerned and is fully prepared to begin trial on the 29th.”

There’s been a flurry of activity the past week to try and slow down or derail the trial. In addition to Thursday’s Supreme Court petition, the Justice Department asked for the president to be removed from the suit and narrow the scope and witnesses that the plaintiffs can call. While the agency succeeded on the president and scope fronts, judges with the Ninth Circuit are still weighing the witness question.

Regardless, Our Children’s Trust said the witnesses have booked their travel to Eugene, Oregon, the site of the case, and are ready for it to go to trial.

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Update: John Roberts temporarily stayed the case late on Friday, asking for the plaintiffs to respond to issues the government raised. Julia Olson, the chief legal counsel for Our Children’s Trust said in a statement that “[w]e are confident once Chief Justice Roberts and the full Court receive the youth plaintiffs’ response to defendants’ mischaracterization of their case, the trial will proceed.”