District Court reverses itself, grants the government an immediate “interlocutory” appeal to the 9th Circuit, putting the trial on hold indefinitely, in a case likely to end up in Supreme Court.
The so-called Kids Climate Change Lawsuit seeks to hold the U.S. government liable for climate change and to compel remedial action. Seriously.
It’s a ludicrous lawsuit that was supposed to go to trial in late October 2018, after surviving a motion to dismiss.
Here’s how the district court described the claims in refusing to dismiss the case:
Plaintiffs in this civil rights action are a group of young people between the ages of eight and nineteen (“youth plaintiffs”); Earth Guardians, an association of young environmental activists; and Dr. James Hansen, acting as guardian for future generations.2 Plaintiffs filed this action against defendants the United States, President Barack Obama, and numerous executive agencies. Plaintiffs allege defendants have known for more than fifty years that the carbon dioxide (“CO;’) produced by burning fossil fuels was destabilizing the climate system in a way that would “significantly endanger plaintiffs, with the damage persisting for millenia.” First. Am. Comp. ¶1. Despite that knowledge, plaintiffs assert defendants, “[b ]y their exercise of sovereign authority over our country’ s atmosphere and fossil fuel resources, … permitted, encouraged, and otherwise enabled continued exploitation, production, and combustion of fossil fuels, … deliberately allow[ing] atmospheric C02 concentrations to escalate to levels unprecedented in human history[.]” Id ¶5. Although many different entities contribute to greenhouse gas emissions, plaintiffs aver defendants bear “a higher degree of responsibility than any other individual, entity, or country” for exposing plaintiffs to the dangers of climate change. Id. ¶7. Plaintiffs argue defendants’ actions violate their substantive due process rights to life, liberty, and property, and that defendants have violated their obligation to hold certain natural resources in trust for the people and for future generations.
Plaintiffs assert there is a very short window in which defendants could act to phase out fossil fuel exploitation and avert environmental catastrophe. They seek (1) a declaration their constitutional and public trust rights have been violated and (2) an order enjoining defendants from violating those rights and directing defendants to develop a plan to reduce C02 emissions.
NBC News reported on October 15, 2018 on the pending trial:
A lawyer for a group of young Americans suing the federal government over climate change said a judge’s decision Monday to allow the suit to move forward should clear the way for a trial to begin on Oct. 29.
The suit, which was brought by 21 children and young adults, accuses federal officials and oil industry executives of violating their due process rights by knowing for decades that carbon pollution poisons the environment, but doing nothing about it.
“When the climate science is brought into the courtroom it will result in the judge finding that the government is committing constitutional violations,” said the lawyer for the kids, Phil Gregory.
In a statement, a Justice Department spokesman said the government is reviewing Monday’s decision from U.S. District Judge Ann Aiken in Eugene, Oregon.
Aiken also ruled that the suit could proceed without President Donald Trump specifically named in it — a move Gregory said the young people had already agreed to.
“The law is unclear on whether and to what extent a court can issue an order to a sitting president,” Gregory said, adding that the ruling still allows the group to sue department leaders within the Trump Administration.
“These agencies are actively infringing on constitutional rights and the judge can issue an order stopping them without including the president,” he said.
There were attempts by the government to halt the trial pending an interlocutory appeal. That means that the defendants would not have to wait for a final judgment at trial to appeal, but could appeal the judge’s rulings before trial. Litigants need permission for an interlocutory appeal (there are exceptions, not relevant here).
As Chris Geidner at Buzzfeed described on November 2, the U.S. Supreme Court declined to address the issue in this procedural posture, but sent signals that the trial court should grant the interlocutory appeal and the 9th Circuit should consider the case:
The Supreme Court on Friday rejected a Trump administration request to prevent a trial in a high-profile lawsuit in which a group of young people are trying to force the federal government to take broad action on climate change, claiming it hasn’t done enough to ensure their right to a safe and clean environment.
The high court, however, strongly suggested that further questions should be resolved by the appeals courts before the case goes to trial.
The Justice Department had asked the Supreme Court in late October to order a halt to the trial, which had been scheduled to begin on Oct. 29. The court denied that request — but it did so “because adequate relief may be available in the United States Court of Appeals for the Ninth Circuit.”
In a three-page, unsigned order, the Supreme Court suggested that an immediate appeal of the district court’s ruling on key legal questions is likely appropriate before any trial begins.
For now, though, the temporary stay on the trial, which had been issued by Chief Justice John Roberts while the court considered the Trump administration’s request, has been lifted, with justices Clarence Thomas and Neil Gorsuch stating that they would have granted the request….
In Friday night’s order from the Supreme Court, justices strongly questioned the decision not to allow an immediate appeal, noting its earlier language from the July order that the claims in the case present “substantial grounds for difference of opinion,” and pointing out that the standard under which a judge can allow for interlocutory appeal is when an order addresses “a controlling question of law as to which there is substantial ground for difference of opinion” and where an immediate appeal could shorten the length of the litigation.
The Court noted that the 9th Circuit had stayed the trial suggesting the trial court reconsider: “On November 8, 2018 at 1:25 p.m., the Ninth Circuit issued an Order in Case No. 18-73014, staying trial in this case pending that court’s consideration of defendants’ mandamus petition. … In its November 8 Order, the Ninth Circuit also invited this Court to revisit its decision todeny interlocutory review.”
[The 9th Circuit Order referenced above is here.]
Here is the key portion of the trial court order:
This Court stands by its prior rulings on jurisdictional and merits issues, as well as its belief that this case would be better served by further factual development at trial. The Cami has, however, reviewed the record and takes particular note of the recent orders issued by the United States Supreme Couii on July 30, 2018, and November 2, 2018, as well as the extraordinary Order of the United States Couii of Appeals for the Ninth Circuit in United States v. USDC-ORE, Case No. 18-73014 issued on November 8, 2018. At this time, the Comt finds sufficient cause to revisit the question of interlocutory appeal as to its previous orders, and upon reconsideration, the Court finds that each of the factors outlined in § 1292(b) have been met regarding the previously mentioned orders. Thus, this Court now exercises its discretion and immediately certifies this case for interlocutory appeal. The Comt does not make this decision lightly. Accordingly, this case is
STAYED pending a decision by the Ninth Circuit Court of Appeals.
So the case is on hold pending review by the 9th Circuit, and eventually, the Supreme Court.
Which means, according to the drama of the lawsuit, we may not have a planet left.
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