The last time we checked in on the so-called Kids’ Climate Change lawsuit, in November 2018, we noted that the trial was on hold, Trial of Kids Climate Change Lawsuit indefinitely postponed:

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.

There was a lot of procedural action that eventually landed the case in the 9th Circuit, as we noted in the prior post:

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….

The Judge in the case has just reversed herself, in light of the Supreme Court comments, and has granted an interlocutory appeal. The full order (pdf.) is embedded below (h/t Chris Geidner).

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.]

A divided 9th Circuit panel ruled today the plaintiffs had no “standing” to sue, and remanded the case with the instruction to the district court to dismiss the lawsuit. A full embed of the Opinion (pdf.) is at the bottom of this post.

What’s most surprising is not that a 9th Circuit panel ruled the way it did, but that there was on judge (a district court judge sitting by designation) who would have let the lawsuit proceed in what amounts to a political argument.

Here’s the pertinent part of the intro section of the opinion, written by Judge Andrew Hurwitz, joined by Judge Mary H. Murguia (both Obama appointees):

In the mid-1960s, a popular song warned that we were “on the eve of destruction.”1 The plaintiffs in this case have presented compelling evidence that climate change has brought that eve nearer. A substantial evidentiary record documents that the federal government has long promoted fossil fuel use despite knowing that it can cause catastrophic climate change, and that failure to change existing policy may hasten an environmental apocalypse.

The plaintiffs claim that the government has violated their constitutional rights, including a claimed right under the Due Process Clause of the Fifth Amendment to a “climate system capable of sustaining human life.” The central issue before us is whether, even assuming such a broad constitutional right exists, an Article III court can provide the plaintiffs the redress they seek—an order requiring the government to develop a plan to “phase out fossil fuel emissions and draw down excess atmospheric CO2.” Reluctantly, we conclude that such relief is beyond our constitutional power. Rather, the plaintiffs’ impressive case for redress must be presented to the political branches of government.

The dissent is stunning and frightening in its disregard for the clear requirement of standing and instead is a social justice activism screed. District Court Judge Josephine Staton, an Obama appointee, concluded her dissent as follows:

To be sure, unless there is a constitutional violation, courts should allow the democratic and political processes to perform their functions. And while all would now readily agree that the 91 years between the Emancipation Proclamation and the decision in Brown v. Board was too long, determining when a court must step in to protect fundamental rights is not an exact science. In this case, my colleagues say that time is “never”; I say it is now.

Were we addressing a matter of social injustice, one might sincerely lament any delay, but take solace that “the arc of the moral universe is long, but it bends towards justice.”15 The denial of an individual, constitutional right—though grievous and harmful—can be corrected in the future, even if it takes 91 years. And that possibility provides hope for future generations.
Where is the hope in today’s decision? Plaintiffs’ claims are based on science, specifically, an impending point of no return. If plaintiffs’ fears, backed by the government’s own studies, prove true, history will not judge us kindly. When the seas envelop our coastal cities, fires and droughts haunt our interiors, and storms ravage everything between, those remaining will ask: Why did so many do so little?

I would hold that plaintiffs have standing to challenge the government’s conduct, have articulated claims under the Constitution, and have presented sufficient evidence to press those claims at trial. I would therefore affirm the district court.

With respect, I dissent.

What’s frightening is that the climate activists came this close to getting the federal judiciary to impose a political decision on the political branches.

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Children's Climate Change Lawsuit (Juliana v. USA) – 9th Circuit Opinion Dismissing Case by Legal Insurrection on Scribd

 

 
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