Is Kids Climate Case Coming to an End?

From The Volokh Conspiracy

The “trial of the century” may not happen after all.

Jonathan H. Adler|Nov. 26, 2018 6:09 pm

On the eve of Thanksgiving, a federal district court judge may have conceded that there will be no federal trial in a case to force the federal government to take more aggressive action to curb greenhouse gas emissions so as to forestall global climate change. After a not-too-subtle rebuke from the Supreme Court and U.S. Court of Appeals for the Ninth Circuit, the trial court judge in Juliana v. U.S. placed the planned trial on hold in order to allow for an interlocutory appeal of the court’s denial of the federal government’s motion to dismiss the case. This action came in response to a none-too-subtle rebuke from the Supreme Court suggesting the trial court was a bit out of line — a message that does not bode well for the plaintiffs’ claims.

The Juliana case is likely the most ambitious and aggressive climate change suit filed to date. Filed on behalf of children who are not yet able to vote, the suit’s claim is that by failing to control the emission of greenhouse gases, the federal government has violated the plaintiffs’s substantive due process rights to life, liberty, and property, and failed to uphold its “public trust” obligation to hold certain natural resources in trust for the people and for future generations.

However serious the threat posed by climate change — and it is quite serious — these are audacious and aggressive claims. It is also not clear that they are the sort of question that can be adequately adjudicated in federal court. Accordingly, the federal government sought to have the claims dismissed on multiple grounds, including that the plaintiffs lacked standing to sue, that their claims presented nonjusticiable political questions and the failure to state a claim for which relief could be granted.

After the district court denied the government’s motion to dismiss, the government immediately sought leave to file an interlocutory appeal, which the district court also rejected.

Faced with the prospect of expansive and intrusive discovery requests — and a looming trial — the federal government sought relief in the form of a writ of mandamus and a stay of the proceedings from the Supreme Court to force the trial court back into line. This was an aggressive move, to be sure, but one the Solicitor General’s office believed was warranted given the unprecedented nature of the plaintiffs’ claims and the trial court’s unwillingness to allow its initial decisions to be challenged.

The SG’s aggressive response to the trial court’s intransigence paid off with a November 2 order from the Supreme Court. While the Court did not grant the government’s motions, it made very clear that a majority of justices thought the district court was out of line. A stay of the proceedings was premature, the Court’s order explained, because there was still an opportunity for the U.S. Court of Appeals for the Ninth Circuit to provide “adequate relief.” This was not-so-subtle hint that the Ninth Circuit heard loud and clear, issuing its own stay of the proceedings on November 8 and inviting the district court to reconsider its refusal to allow interlocutory review.

The actions taken by the Supreme Court and Ninth Circuit left the trial court little alternative but to reverse course. In her order, Judge Aiken tried to defend her handling of the case, but it does not go very well. After recounting the proceedings to date, the judge identifies the relevant legal standards for an interlocutory appeal, thereby demonstrating how her initial decision was in error.

With respect to the question of interlocutory appeal, appellate review is generally available only after a final judgment has been entered by a district court. 28 U.S.C. § 1291. The Interlocutory Appeals Act, 28 U.S.C. § 1292(6), provides a limited exception to that requirement: “When a district judge, in making in a civil action an order not otherwise appealable under this section, shall be of the opinion that such order involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation, [s]he shall so state in writing in such order.” 28 U.S.C § 1292(b). “Even where the district court makes such a certification, the
court of appeals neve1theless has discretion to reject the interlocutory appeal[] and does so quite frequently.” James v. Price Stern Sloan, Inc., 283 F.3d 1064, 1068 (9th Cir. 2002) (citing to 16 Wright, Miller & Cooper § 3929, at 363).

Congress did not intend district courts to certify interlocutory appeals “merely to provide review of difficult rulings in hard cases.” US. Rubber Co. v. Wright, 359 F.2d 784, 785 (9th Cir. 1966). Rather such ce1tification should be granted only “in extraordinary cases where decision of an interlocutory appeal might avoid protracted and expensive litigation.” Id. . .

The district court should have seen this coming. The Juliana case has regularly been trumpeted as the “trial of the century,” a climate Scopes trial, to demonstrate the urgency of climate change and force federal action. As Judge Aiken noted in her denial of the government’s motion to dismiss, this case “is of a different order than the typical environmental case.” Indeed, to recite the underlying legal arguments — that there is a judicially enforceable constitutional right to federal climate control under some combination the public trust doctrine and substantive due process — and to consider the relief plaintiffs sought is to make plain the ambitious and unprecedented nature of the plaintiffs’ claims, and to make plain the district court’s error in denying the prior request for an interlocutory appeal. There is no question but that there is “substantial ground” to question the district court’s initial ruling on multiple dispositive motions that could (and, indeed, likely will) bring this litigation to an end. If this case did not satisfy the standard for an interlocutory appeal, it’s not clear what case ever could.

Judge Aiken, however, is unbowed. Her order continued:

The function of trial courts in our judicial system is to initially consider the myriad evidence and legal issues offered by the parties and then refine them to their most essential form, rendering judgment and relief as the law allows. Our judicial system affords district courts the respect of operating under an assumption that such courts do not “insulate hotly contested decisions from [] review simply by fast-tracking those decisions and excluding them from its published determination.” Indep. Producers Group v. Librarian of Cong., 792 F.3d 132, 138 (D.C. Cir. 2015). Here, the Court has deliberately considered all motions brought by the parties, and its decisions are accessible for appellate scrutiny. . . .Trial courts across the country address complex cases involving similar jurisdictional, evidentiary, and legal questions as those presented here without resorting to certifying for interlocutory appeal. As Justice Stewart noted, “the proper place for the trial is in the trial court, not here.” Baker v. Carr, 369 U.S. 186, 266 (1962) (Stewart, J., concurring.)

Importantly, the Supreme Court has recognized that “[p]ermitting piecemeal appeals would undermine the indepe1idence of the district judge[.]” Id. Additionally, ordinary adherence to the final judgment rule is in accordance with the sensible policy of “avoid[ing] the obstruction to just claims that would come from permitting the harassment and cost of a succession of separate
appeals from the various rulings to which a litigation may give rise, from its initiation to entry of judgment.” Id. (quoting Cobbledick v. United States, 309 U.S. 323,325 (1940)). The Court notes again that this three-year-old case has proceeded through discovery and dispositive motion practice with only trial remaining to be completed.

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 Court has, however, reviewed the record and takes particular note of the recent orders issued by the United States Supreme Court on July 30, 2018, and November 2, 2018, as well as the extraordinary Order
of the United States Court 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 Court 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 Court does not make this decision lightly. Accordingly, this case is STAYED pending a decision by the Ninth Circuit Court of Appeals.

Read the full story here:

HT/Willis Eschenbach

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63 thoughts on “Is Kids Climate Case Coming to an End?

  1. However serious the threat posed by climate change — and it is quite serious

    Aaaand there goes all semblance of objectivity.
    Another highly biased opinion piece disguised as a news report.

      • The biggest risk is that the western world will bankrupt itself and drive all it’s industry into the ground in a foolish tilt at windmills.

    • Ehh, Adler is a professor. He has to worry about mobs of enraged leftist radicals battering down the doors to his office. Followed closely by lunatic leftist college administrators blaming him.

      I took the phrase as a rhetorical aside intended to at least throw the administrators off his trail.

    • Let’s step back and take a deep breath. A changing climate (whatever the cause, or no “cause” at all!) does indeed pose serious threats to mankind – IF the changes are drastic enough, and happen quickly enough.

      • brians356

        Of all the millions of things I have to worry about, that theoretical possibility gets prioritized down there with being attacked by a saber-toothed tiger.

        To put it into words that may be easier to understand: There are hundreds of thousands of theoretically possible things that I do not worry about at all.

      • Sometimes a change is good. Is that often a reason people move? My worst involuntary climate move was to cold in northern Alberta Canada, but there have been good ones too where there was no snow to be reckoned with.

  2. ” plaintiffs’s substantive due process rights to life, liberty, and property”

    Right to Life?

    There is no life without CO2. CO2 is integral and necessary for the Carbon Cycle of Life.

  3. If you read the plantiffs motion the case would require one to reach outside more than 300 years of common law in order to make the claim that a minor child is entitled to liberty and property, the issue of due process is moot if you read the legal arguments against this case.

    In the words of Gary Bussey, “it’s pretty ba.. it crazy” since the trail judge is claiming she the jurisdiction to re-write history rather than apply the law and laws as they have evolved over several hundred years.

  4. Judge Aiken got the message that she’d be overturned, if not by the 9th Circuit, then by the Supremes.

  5. I would prefer the case to go ahead:

    Alarmists lying under oath would be perjury.

    Refusing to give the data they base their testimony on would be obstructing the course of justice.

    • BillP

      You ascribe much more wisdom to courts & the legal process than I’m willing to.

      Indiana’s Supreme Court has ruled the US Constitution’s prohibition of excessive fines does not apply in Indiana; Indiana’s attorney general is arguing in the US Supreme Court that Indiana may force a driver to forfeit a car for exceeding the speed limit by 5MPH.

      These beyond-belief governmental overreaches may be corrected by the US Supreme Court in 2018, but this theft by governmental agency has been going on for decades.

      You have to be nuts to willing subject yourself to these very human foibles.

      • That’s not what the trial judge did. She further documented her erroneous opinion, but capitulated on the issue of a stay for appeal. Upon receiving the writ, she quite literally had no choice in the matter (US district court judges cannot issue writs of mandamus).

        If she defied the writ of mandamus, the US Supreme Court has the authority to quickly reprimanded and/or suspended her from hearing cases. Only congress can impeach a judge.

  6. The key issue is the remedy. Suppose that the court agrees that people have a constitutional right to action on global warming by way of reducing or eliminating GHG emissions.

    Now what is the court going to order, that will have any effect on the global GHGs that are alleged to be the cause of the harm?

    We are back once again at the point that the activists in the UK and US are always seeking to lower US and UK emissions, as if that would make a dent in the total global emissions which on their theory are threatening civilization. And yet, simple arithmetic shows that even were the US and UK to stop emitting totally, this would not lower emissions enough, on the theory, to make any material difference.

    The court would have to order China, India and Indonesia to stop emitting. Maybe Russia also.

    So even if the suit were to prevail in law, it would founder on the fact that the court has no effective jurisdiction on the main sources of the harm, and so no power to remedy it.

    It is a bit like the children of Tuvalu suing their government to get an order to stop sea levels rising, and thus preserve their constitutional right to dry land, by somehow limiting emissions. Obviously the court has no power to order anything that will lower global emissions, and neither does any US court.

    If they are really serious about this, get out there in front of the Chinese Embassy with a whole lot of placards. That’s who is doing the emitting these days.

    • John Kerry once indicated that the US could stop ALL CO2 emissions but this would not offset the emissions from the rest of the world. Introduce that testimony to the court!

  7. From the second paragraph of the second block quote.

    would undermine the indepe1idence of the district judge

    A scanning artifact perhaps?

    • If I judge what he says, am I judging the content of his character?

      Does that mean MLK’s dream has come to fruition?

      • The booming US oil and gas economy is definitely “in spite” of Obama, not because of him. Obama has no shame.

        Obama also said he had not been indicted and noone in his administration had been indicted. I say: Not yet, Barack. Give it a little time. Your not being idicted as of now does not count because your people were in charge of indictments.

        Let’s see what happens after this Mueller witch hunt is over. Trump will be free to unleash the DOJ on a bunch of unfinished business.

        We don’t like it when politicians try to subvert our form of government like you and your minions did and are doing. People need to be held to account for this treason.

    • That increase was almost entirely from private lands, as the Obama adminstration all but stopped new development on public lands.
      It was also due to frakking, which the Obama administration fought tooth and nail.

      Obama also claimed that if you like your doctor you can keep your doctor.

  8. Actually, the judiciary woke up only when Judge Aiken scheduled a 50-day trial for testimony from all and sundry. The prospect of turning a courtroom into a ten-week alarmist COP gave the higher justices pause. After all that grandstanding, amplified by unquestioning journalistic believers, how would any higher court put the toothpaste back in the tube? Hence, the realization better to bite the bullet now, than to cope with scorched earth afterward.

    My post on this case and the tortuous process:
    https://rclutz.wordpress.com/2018/11/24/kids-climate-lawsuit-update-nov-24/

  9. Adler is a law prof, and he is not a bad guy, but he lacks a certain amount of practical experience. I shall repeat what I wrote about this case on Friday:

    Look folks: This is a nothing burger. The district Judge decided to send this clown show to her bosses — the Court of Appeal for the Ninth Circuit. Where they will monkey around with it for a year or two before kicking it back to her.

    The Ninth Circuit is the court in charge of the western states — Alaska, Hawaii, California, Oregon, Washington, Idaho, Montana, Nevada, and Arizona. During my 45 year legal career, it has always been a very left wing court. It is certainly part of the #Resistance now.

    The Ninth Circus will most likely instruct the district court to allow the clown show to perform. In due course it will. And she will spend a year or two writing an opinion which regurgitates the theology of the cult of warmunism. It will be appealed back to the Ninth Circus for a couple of rounds of hearings, followed by opinions declaiming the horrors of capitalism and the depravity of Donald Trump.

    Then the case will be appealed back to the US Supreme Court which will unanimously reverse the Ninth Circus. But, that will be in 7 years.

    • So, I guess the real question is … will these ‘kids’ receive Social Security before the case is settled (then again whether they will ever receive Social Security is a fair question on it’s own) ?

      • In less than 20 years, the so called Social Security Trust Fund will run dry.
        At time SS admin will be required by law to reduce payments so that outgo equals income.
        Current predictions are that payments will drop by around 30%.

        We all know that will never happen. What will happen is that either the Federal government will pony up the difference, which they can’t afford to do, or they will start means testing SS.

        In other words, anyone who was smart enough to save for your retirement will be told you are no longer eligible for SS.

        There is another possibility, they could do as other countries have done. Seize all 401k’s and other retirement funds and put them into SS.
        They will get around the constitutional limitations by declaring that your social security account will be credited by an amount equal to what was seized.
        Since this move doesn’t solve the problem, it merely kicks it down the road for a decade or two. After which time one of the first two options will be chosen.

        • When the government tries to seize my private assets, that’s when I’ll be marching in the streets, and I’ll have my guns with me. You can be assured I won’t be alone either.

          • When the government tries to seize my private assets, that’s when I’ll be marching in the streets, and I’ll have my guns with me. You can be assured I won’t be alone either.

            You are deluded if you think governments can’t, and indeed won’t, do that if required. What is enforced taxation on income at source if not seizure of your assets? What about not letting you buy property without stamp duty (or equivalent)? What about seizure of 20% or more of every dollar you spend?

            Only two things in life are certain!

          • Govn’t in Australia was (Still is?) considering tapping in to personal savings accounts to assist paying off debt.

            Everything is by grant here, even citizenship.

          • Paul

            Don’t look now, Paul, but inflation already steals your assets.

            Don’t think so? I was born in 1946…the purchasing power of $1 in 1946 now requires $13. Good luck with that “bunch of guys with a pitchfork” stuff.

        • In other words, anyone who was smart enough to save for your retirement will be told you are no longer eligible for SS.

          This is what happens in Australia. Add to that, employers are forced to taje 12% (I think, used to be 9%) of your income and put it in your superannuation fund.

          The idea is, you are forced to build a superannuation fund, and thus the state pension requirements are reduced. It does make sense, and does provide assurance that nobody will starve.

          Unfortunately it penalises people who make additional investments (from already taxed income) like a rental property, and that annoys a lot of people.

          • Yes, used to be 9% but Kevin Rudd caved in to pressure from the superannuation sc@m industry we are forced to have employers deduct up to 12%. It then goes to a fund manager who will, automatically, charge you life insurance even if you don’t need it and feeds on top of taxes.

            A sc@m.

        • For those of you too young to be in the know about Social Security, there is already a camel’s nose in the “means testing” tent:

          Each year (I’ve just gotten my letter) the Social Security Administration looks back at your last tax return. The more taxable income you claimed, the more you pay for Medicare Part B. Yea, I know we’re talking Social Security and Medicare, but the Medicare Part B premium come out of my Social Security check.

          • And the Part D “premium” is tied to your taxable income from 2 years ago, as well.

            Then, once you hit 70-1/2, you have to start withdrawing a certain amount per year from your tax-free accounts (e.g., IRAs, 401-Ks), and said withdrawals become taxable income, which will crank up your Medicare Part B and Part D premiums down the road. Can’t win for losing.

          • Roger that, Javert! My wife was excited to see she was getting a SS raise, only to discover that the increases in Medicare resulted in her getting a smaller paycheck!
            I haven’t gotten my letter yet, but it will say the same. Our investment income dooms us to smaller Government income – which we were forced to pay into. We were forced to pay into Medicare, too, with no cap. Doesn’t matter.

    • I disagree. My understanding is that once an interlocutory appeal is permitted, the appeal process runs its entire course before the trial. So the Ninth Circuit is going to have to decide the issue of standing, whether relief is available under substantive due process, etc. and that whatever decision they make can be at that point appealed to the Supreme Court before any trial takes place.

      Remember, the decision to grant an interlocutory appeal was by statute entirely at the discretion of the trial court judge. No appellate court could have forced her to do it, but she did it anyway even though her order plainly stated that she did not think that the circumstances warranted an interlocutory appeal. The only rational explanation for this result is that she knew that the game is over on this trial. If she denies interlocutory review, the Ninth Circuit then has to rule on the mandamus petition and the Ninth Circuit just got a not-too-subtle message from the Supreme Court that they think mandamus would be appropriate, but they thought that procedure dictated that the Circuit Court had to have an opportunity to grant mandamus before the Supreme Court considered the issue.

      If the district court judge sees enough writing on the wall to grant an interlocutory appeal when she plainly doesn’t want to, I think it is likely that the Ninth Circuit will read that same writing and rule that the federal courts have no power to remedy the purported harm asserted to the plaintiffs or find some other reason to dismiss on standing issues. From their perspective, its better that they write the decision and limit the damage rather than let the Supreme Court have a whack at it.

      • Very interesting. Thanks for giving you take on the issue. Keep the popcorn handy as we all watch the courts do their dance.

  10. The Kids Klimate Kontrived case is a good example of what’s possible to manipulate the court system for free advertising, promotion, and advocacy bantering with more child victims. It beats Al Gore’s cookie jar failed science project (cheating actually) with faked results using video editing.

  11. …However serious the threat posed by climate change — and it is quite serious …

    Can we have a reference for that? I haave yet to see any evidence that we are doing anything beyond coming out of the LIA….

  12. The plaintiffs have a bigger case on their grounds for suing their brain-designer schools. And lefty de-education is actually a bigger threat to life and liberty for these children.

  13. This lawsuit was filed back when Libs assumed Hilly would win and thus move the Federal Courts and the Supreme Court further to the looney left ideas of a Living Constiution interpretation.
    With Trump’s win and his two SCOTUS nominees now confirmed, the Left’s legal calculations on how this case play out have been thrown in serious doubt. The Left’s calculus is further complicated by Trumps determination to fill 3 vacant positions on the 9th Circuit with conservative judges within the 6 months.
    Everything the Left had hoped for with this case is now setting to backfire and explode in their face.
    So please, let the trial proceed.

    • “…Trumps determination to fill 3 vacant positions on the 9th Circuit with conservative judges…”

      This is why it was such a big victory by Trump to retain Republican control of the Senate! That and the fact that there are a lot of official nominations that the previous Senate was blocking, will now go through.

      • Indeed. with a couple additional seats (and minus some RINO roadblocks like Flake and McCain) The Senate should be able to do much good with the nominations the next two years.

  14. New law suit….

    West coast crabbers are suing oil companies, saying that their fisheries are being harmed by the oil industry.

    (I think a settlement is in order. A $40/gallon fee should be attached to commercial marine fuel use; the crabbers can pay half and the oil industry can pay the other half. The proceeds can go to the enforcement of the fee; a commercial fishing (crabbing) permit surcharge can be implemented for the administration of the enforcement department.)

    When there was an oil spill in California waters, some of the fishers tried to get all of the fishers to not fish (to bolster their lawsuit). It didn’t work, some fished anyway. Seems the California crabbers are at it again … scumbags.

  15. Sorta OT – Surely there are children in this country that would like help to file a challenge to Roe vs Wade. Libs need to be careful of their deceitful tactics.

  16. Lets go the logical end of the requirement that the United States government must prevent CO2 from destroying the planet for the children…
    We stop all industry, go to net neutral CO2, then we also have to make, force the rest of the world to do the same. How many nations are going to cooperate willingly on this? A couple? So, what do we do with Europe, Russia, China, all the Gulf States, Canada, Mexico, the rest of America? Go to war and forcibly remove them from fossil fuel use?
    I totally see leftists loving this outcome. No one else will. Many leftists will recoil in horror even from this.

  17. “the suit’s claim is that by failing to control the emission of greenhouse gases, the federal government has violated the plaintiffs’s substantive due process rights to life, liberty, and property…”

    I’ve got a better case – by chasing non-solutions to fictitious climate “issues,” governments are violating EVERYONE’S substantive due process rights to life, liberty, and property, through the economic destruction the prescribed “policies” will cause and making basic life necessities like heating, electricity, air conditioning, transport, and food unaffordable.

    Now if only I had hordes of money to spend on lawyers like these Eco-Nazi tools.

  18. For those that believe in the radiative greenhouse effect, the primary greenhouse gas in H2O and not CO2, Even if the government could somehow remove all the CO2 from the Earth’s atmosphere, it would not have a significant effect on the over all radiant greenhouse effect and would have not have a significant effect on climate. The federal government has also made no effort to reduce the amount of H2O in the Earth’s atmosphere because they do not know how to do that.

    For example, in the city where I live. greenhouse gas becomes so concentrated in the atmosphere that it sometimes condenses out as a liquid. The city knows about this problem and has constructed a network of pipes under the streets to channel this liquid away. Their solution to this problem is to just dump the liquid just outside of the city limits where the liquid greenhouse gas is allowed to evaporate back into the atmosphere. The pool has become so large that one can even see it from space, The city, the county, the state, and the federal government have done nothing to solve this problem yet no lawsuits are pending.

  19. The reality is there is a great deal of money to be made by lawyers should they ever win such a case , had compared to not much cost if they lose. Hence why they will keep coming back , again and again .
    There is blood in the water and the sharks have noticed .

  20. The whole thing is reminiscent of the Children’s Crusades back in the Middle Ages. Just a way for lawyers to make a lot of money with no good end in sight.

    • Actually, the crusade was a way to “re-purpose” excess children and, oh by the way, make a lot of money for the Knights of Malta.

      If you have not already done so, go visit their HQ in Malta! It’s beyond fabulous.

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