Split Ninth Circuit Grants Government’s Interlocutory Appeal in Youths’ Climate Change Suit

In 2015, 21 youth plaintiffs, ranging in age from eight to 19 at the time of filing, brought a constitutional climate-change lawsuit against the United States alleging that the United States and various executive branch agencies discriminate against younger generations with policies that contribute to and exacerbate climate change in violation of their constitutional rights to life, liberty, and property. The plaintiffs seek an order enjoining current governmental policies and adopting a plan to curb excessive carbon dioxide emissions. The government unsuccessfully sought to have the case dismissed, and when that failed, sought mandamus from the Ninth Circuit directing the district court to dismiss the suit. Recently, after a trip up to the United States Supreme Court and back down to the Oregon District Court, the Ninth Circuit ultimately agreed by a 2-1 majority to allow the defendants’ mandamus petition to proceed.

The majority noted that interlocutory appeals under 28 U.S.C. § 1292(b) are generally only authorized when a district court order “involves a controlling question of law as to which there is substantial ground for difference of opinion” and found “an immediate appeal from the order may materially advance the ultimate termination of the litigation.”

The plaintiffs allege that the United States government knows, yet continues to ignore, that carbon dioxide emissions from the burning of fossil fuels destabilize the climate. The plaintiffs contend that the defendants nonetheless continue to enable atmospheric carbon dioxide concentrations to reach historically unprecedented levels. According to the plaintiffs, governmental climate-change policies are causing “concrete injury,” such as increased flooding, food shortages, property destruction, and species extinction.

Government lawyers chastised the district court’s order denying the motion to dismiss as an unconstitutional disregard of the separation of powers doctrine. The defendants contend—contrary to the district court’s recognition of an “unenumerated fundamental right” to “a climate system capable of sustaining human life”—that the public does not possess the constitutional right to clean climate policies.

The plaintiffs initially filed suit in August 2015 in the United States District Court for the District of Oregon, and U.S. District Judge Ann L. Aiken has presided over the case since the outset. Three fossil-fuel industry groups immediately intervened—American Fuel and Petrochemical Manufacturers, American Petroleum Institute, and the National Association of Manufacturers—and joined the United States in its efforts to dismiss the case. U.S. Magistrate Judge Thomas Coffin recommended denial of the defendants’ motion to dismiss. In November 2016, Judge Aiken denied the defendants’ motion to dismiss.

Judge Aiken’s opinion gave life to the plaintiffs’ claims: “This lawsuit is not about proving that climate change is happening or that human activity is driving it. For the purposes of this motion, those facts are undisputed.” She continued in a footnote the court will “proceed on the understanding that climate change exists, is caused by humans, and poses a serious threat to our planet.” The defendants sought an interlocutory appeal of that decision, and the court denied that motion, as well, in June 2017. The defendants then petitioned the Ninth Circuit for a writ of mandamus seeking to reverse the district court’s order denying the defendants’ motion to dismiss.

The three-judge Ninth Circuit panel concluded that the defendants had not reached the high bar required for interlocutory relief at this stage in the litigation and subsequently denied the defendants’ mandamus petition. The panel held that the defendants did not satisfy the five Bauman factors required for a writ of mandamus, Bauman v. U.S. Dist. Ct., 557 F.2d 650, 654-55 (9th Cir. 1977)—a “drastic and extraordinary remedy,” In re Van Dusen, 654 F.3d 838, 840 (9th Cir. 2011). The circuit panel found, based on the defendants’ failure to satisfy Bauman, that the defendants’ “current request for mandamus relief is entirely premature.” The defendants petitioned the Ninth Circuit for a writ of mandamus a second time. The three-judge panel again denied, finding “[n]o new circumstances justify this second petition, and we again decline to grant mandamus relief.” the defendants thereafter petitioned the United States Supreme Court.

The Supreme Court also declined to hear the defendants’ mandamus petition. “At this time, however, the Government’s petition for a writ of mandamus does not have a ‘fair prospect’ of success in this Court because adequate relief may be available in the United States Court of Appeals for the Ninth Circuit,” the Court explained. “When mandamus relief is available in the court of appeals, pursuit of that option is ordinarily required.” The order noted that “Justice Thomas and Justice Gorsuch would grant the application.” This reasoning prompted the defendants to renew their mandamus petition at the Ninth Circuit.

Judge Aiken reluctantly stayed the case and certified it for interlocutory appeal after the Ninth Circuit encouraged her to reconsider her previous decision denying interlocutory review. In the order certifying the defendants’ interlocutory appeal, she wrote: “This Court stands by its prior rulings on jurisdictional and merit issues, as well as its belief that this case would be better served by further factual development at trial. The Court has, however, reviewed the record and takes particular note of the recent orders issued by the United States Supreme Court . . . as well as the extraordinary Order of the United States Court of Appeals for the Ninth Circuit.” The district court fashioned this less-than-enthusiastic language to introduce its reconsidered finding that sufficient cause existed to revisit the question of interlocutory review.

The Ninth Circuit split 2 to 1 in permitting the defendants’ writ of mandamus to be heard. The same panel of judges that declined to hear the defendants’ first two mandamus petitions—Chief Circuit Judge Sidney R. Thomas, Circuit Judge Marsha S. Berzon, and Circuit Judge Michelle T. Friedland—considered the defendants’ renewed mandamus petition request. Now, however, Chief Judge Thomas and Judge Berzon, comprising the majority, agreed to consider the defendants’ interlocutory appeal. In its order, the majority found “[t]he district court properly concluded that the issues presented by this case satisfied the standard set forth in § 1292(b) and properly exercised its discretion in certifying this case for interlocutory appeal.”

Circuit Judge Friedland, in dissent, wrote that the district court’s certification order appeared disingenuous. “I do not believe that the district court was actually ‘of the opinion’ that ‘an immediate appeal from [these orders] [would] materially advance the ultimate termination of the litigation’—nor did it meaningfully ‘so state.’” The dissent highlighted the trial court’s “superior vantage point” and noted trial courts are “far better positioned to assess how to resolve the litigation most efficiently.”

This case, to date, has largely been a procedural battle dragging on for years without any real progress, highlighting the courts’ general unease in deciding hypersensitive political issues such as climate change. A Pennsylvania federal court recently dismissed with prejudice a substantially similar suit, in which the judge directly chastised the Oregon District Court’s decision to hear such a case. Judge Aiken, on the other hand, has not shied from permitting the parties a forum to publicly air these concerns alongside a fully developed record. Julia Olson, one of the plaintiffs’ representatives, commented that “it’s not surprising to me that the Supreme Court isn’t touching the substance of it right now,” after the Court’s decision to punt the case back to the lower courts. A lot remains to be seen, and chief among the concerns is whether the judiciary is capable of crafting potential clean-climate remedies without unconstitutionally encroaching into legislative and executive territory.

In the meantime, the Juliana plaintiffs have filed a motion for a preliminary injunction seeking to enjoin the United States government from approving certain off-shore drilling projects and mining permits during the pendency of the appeal.

Michael A. Conforti is an Associate in the Gibbons Commercial & Criminal litigation Department.
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