The Last Hurrah?
I’ve been writing about Juliana vs. US for over three years — slightly less time than the plaintiffs in the case have been waiting to have their day in court. To date, Juliana has turned not on the substantive scientific or constitutional questions the plaintiffs have asked the courts to answer but on such procedural issues as whether the 21 youthful petitioners have standing to sue, e.g., have they suffered an actual harm that a court can redress?
For Juliana, I believe the end is nigh — or at least can be predicted with some certainty. Based on the judicial events that have taken place since the middle of October 2018 the case is not likely to be won.
Over the course of the past several years, I’ve endeavored to give readers an understanding of the substance of the plaintiffs’ legal claim that they have a constitutional right to a habitable environment and their allegation that the federal government has actively abridged that right by favoring fossil fuels.
Equally, I have tried to present fairly the government’s counter-arguments that the problem of climate change, if it exists, is neither of its doing nor within the judiciary’s power to redress. It is, according to Department of Justice (DOJ) attorneys, a matter for the legislative and executive branches of government to decide.
The number of climate-related lawsuits has been rising steadily over the last five years. Since Trump was elected, the trendline has gone vertical. Recent polls show a substantial majority of Americans recognize the realities of climate change, and an increasing number of respondents indicate they have personally experienced its effects.
Just today (2/7/2019) two simultaneous hearings on solving the climate crisis were held by the House Natural Resources and Energy and Commerce committees. It was the first time in nine and six years respectively that these committees had addressed the issue.
Under Republican control, years of committee time were wasted trying to prove what was happening in front of their eyes was a hoax. A week ago, Trump was tweeting that a few days of record cold was all the proof he needed to continue ordering his administration to roll back existing environmental protections and peddle the nation’s fossil fuels at home and abroad.
It is hardly surprising, given the failures of the legislative and executive branches of government, that the judiciary is being turned to as courts of last resort. Integral to the rising number of legal actions is the testing and refinement of the novel legal theories upon which they are based. Juliana is a case in point.
If the Juliana plaintiffs fail in their quest, it will not be because their arguments lack merit or their science is fake. Lawsuits are brought, argued, and decided within certain strictures. Like many things in life, there are rules to follow.
It is critical for climate defenders to understand why a case succeeds or fails in the courtroom for two basic reasons. The first is to carry the knowledge and experience forward when choosing the next case to pursue; the proposition is true whether the case just decided won or lost.
Legal decisions are rarely made within the confines of a single case. The outcome of most suits depends on cumulative precedence and practices — known in law as the doctrine of stare decisis. What went before influences what comes after.
The second reason an appreciation of the procedural and substantive aspects of a case is critical is to assay its potential value in a different court — that of public opinion. A litigant who fails to trace the injury incurred directly to the defendant’s actions will lose in a court of law. A procedural loss, however, doesn’t mean the plaintiff wasn’t harmed or won’t continue to be.
It means the defendant isn’t legally liable — in which case, responsibility for correcting the problem rests with the legislative and executive branches of government, i.e., through the passage of new laws or regulations. No liability is the cry of the Trump administration in Juliana.It is also the defense put forward by major oil companies in nuisance/tort suits like State of Rhode Island v Chevron et al. In the US judicial system, political questions are answered — or not — by the executive and legislative branches of government usually after their trial in the court of public opinion.
The series of events I’ve outlined below suggest that federal courts will declare the alleged harms and proposed solutions in Juliana to be political questions and, therefore, outside of the judicial bailiwick.
October 18, 2018. The Trump administration files a second writ of mandamus petition and application for a stay with the US Supreme Court.
October 19, 2018. SCOTUS orders a temporary, administrative stay, while it considered the federal government’s petition and asked plaintiffs to respond to it.
November 2, 2018. SCOTUS denies the government’s stay request.
November 5, 2018. DOJ attorneys file a motion for a stay with the trial court — the US District Court for the District of Oregon.
November 5, 2018. Administration attorneys return to the Ninth Circuit Court of Appeals asking again for a stay and file a new petition for a writ of mandamus.
November 8, 2018. A panel of the Ninth Circuit Court of Appeals grants, in part, the Trump administration’s request for a temporary stay of the trial court’s proceedings. The Court stays only the actual trial. The litigants are allowed to continue preparations for trial, e.g., deposing various witnesses.
In its Order, the appellate court invited the trial court judge to revisit her earlier decision denying an interlocutory review.
Interlocutory appeals are typically permitted when the trial judge certifies to the appellate court that there are substantial differences of opinion over an important question of law that once decided would substantially affect the final outcome of the case. “Judicial economy” then requires the appellate court to make an interim ruling on the law(s) in question.
The ruling is only a guide to the parties, as it may be reversed on an appeal from the trial court’s final decision in the case. The interim decision of the controlling question(s) gives notice to the parties of what the appellate court is thinking and offers a chance to drop the case without having to incur — needlessly — the costs of litigation.
November 21, 2018. The trial court judge, Anne Aiken, issues an order certifying Juliana v. United States for interlocutory appeal to the Ninth Circuit Court of Appeals.
Such certifications are exceptions rather than the rule as they preempt the role of the trial court to hear and decide questions of fact and law. Although Judge Aiken certified that a preemptive review of the legal question(s) by the appellate court could now be considered, she took special care to reaffirm that justice would be better served after the trial is over.
Justice delayed, in this case, would be justice better served as it would allow the reviewing courts to consider the parties’ arguments on appeal with the benefit of a fully developed factual record.
I will discuss a bit further on why Judge Aiken made what was surely an agonizing decision for her. A regretted decision likely to be made in the future by other judges in other courts not just in America but around the world. Juliana highlights the need for the three branches of government to work together to solve the problem that mounting evidence tells us is the greatest threat the world has known since the last great extinction — 66 million years ago.
December 26, 2018. The Ninth Circuit Court of Appeals grants the defendant’s permission to bring an interlocutory appeal in a 2–1 decision.
January 8, 2019. US District Court Judge Anne Aiken rules against plaintiffs’ motion to reconsider her certification of the interlocutory appeal.
February 3, 2019. DOJ lawyers file a brief in support of its interlocutory appeal with the Ninth Circuit Court of Appeals. Key claims in the brief are:
- Plaintiffs have failed to assert any specific injury to themselves claiming instead undifferentiated injuries arising from a diffuse, global phenomenon affecting every other person in their communities, in the United States and throughout the world.
- There is no [constitutional] right to a stable ‘climate system capable of sustaining human life.’
- Neither the plaintiffs nor the trial court judge cited any legal authority permitting an unprecedented usurpation of legislative and executive authorities by an Article III court, essentially placing a single district court in Oregon — acting at the behest of a few plaintiffs with one particular perspective on the complex issues involved — in charge of directing American energy and environmental policy.
- Without exception, the Supreme Court has held that the public trust doctrine is a matter of state law and has no basis in the US Constitution.
February 22, 2019. Pursuant to the Ninth Circuit Court of Appeals’ expedited briefing schedule the plaintiffs’ response brief is due by February 22nd.
March 8, 20019. The last date the federal government can submit an optional reply to the plaintiffs’ response brief filed on or before February 22nd.
The “AH, HA” moment when the future of Juliana came clear to me was the day after Christmas while reading that the Ninth Circuit Court Appeals panel of three judges granted the DOJ lawyers permission to bring the interlocutory appeal. The first glimpse of the future, however, was Judge Aiken’s certifying the appeal on the 21st of November.
Admittedly, most everyone knew the odds of the case making it across the finish line whole were long — made longer when Trump was elected pres-ident. Yet, the case was still standing in November 2018 having survived the relentless onslaught of government motions to have the case thrown out before the 21 plaintiffs could have their day in court.
Next, to the establishment of a constitutional right to a habitable environment, the gold ring on the Juliana merry-go-round has always been the opportunity to debate climate-science in open court — perhaps the only arena in America these days where partisan politics can be forcibly ruled out of order.
Juliana has always seemed kissed by lady luck — blessed with diligent and wise decisions by its legal team. The case came before judges and justices, from the trial court on up to the US Supreme Court, who saw the intrinsic value of letting the case come to trial. Make no mistake, the judges and justices involved in the case did not just vote along party lines. Until the end of July, Justice Kennedy, a Reagan appointee, continued to be the swing vote he had shown himself to be in other landmark environmental law cases like Massachusetts v. EPA and Rapanos v. US. All three judges on the Ninth Circuit Court of Appeals were appointed by Democrats two of them voted to allow the interlocutory appeal.
It appears that Juliana may have finished its run; and, what a run it has already been. Early on the case was often reported with a wink and a nod giving the impression that Juliana v. US was a cute human-interest story about kids. As the months turned to years Juliana was considered to be potentially the most important environmental case of all time raising it to the stature of such historic decisions as Brown v. Board of Education (school deseg-regation), Roe v. Wade (a woman’s right to an abortion), and Obergefell v. Hodges (the right of men and women to marry those they love even if of the same sex).
Earlier I had commented that I thought Judge Aiken had made her decision to certify the interlocutory with regret and that other judges in the future would face the same regrettable choice. Why regretted? Because Aiken and other of the judges and justices hearing the case credit the overwhelming majority of the world’s climate scientists with telling the truth about climate change.
These deciders of law and fact see the dysfunction of the executive and legislative branches of government caused by runaway partisanship. They understand that alternative facts are just lies. As lies, they would never be allowed to stand in a court of law — while in politics they are employed with abandon.
There are judges and justices outside of the Juliana case on record believing the mounting science-based evidence of climate change — its causes and consequences. The list includes the newest member on the US Supreme Court — Justice Kavanaugh.
The judge in City of Oakland and the People of the State of California v BP P.L.C. et al., a nuisance/torts case like the State of Rhode Island suit already mentioned went so far as to order the litigants to give him a 2-hour briefing on climate science. Although dismissing the case for both practical and procedural, e.g., standing, reasons, Judge Alsup wrote in his opinion:
This [court] order fully accepts the vast scientific consensus that the combustion of fossil fuels has materially increased atmospheric carbon dioxide levels, which in turn has increased the median temperature of the planet and accelerated sea level rise.
A decision by the Ninth Circuit Court of Appeals on the interlocutory may come before Spring. Whatever the Court decides, the opinion will be appealed back to the US Supreme Court by whichever litigant ends up holding the short straw.
A ruling in favor of the Juliana plaintiffs will send the case back to the trial court where a climate-science will be called to the witness stand. A favorable trial court decision will be recycled through the appeals process where it could take years more to find its way back to the High Court.
Should the government ultimately prevail, the book will be closed on Juliana. The fight for climate justice, however, is far from over. Other climate-science cases are pending on state and federal court dockets, and the new Democratic majority in the US House of Representatives has declared itself ready to join the fight. The case of Juliana v. US will be cited in these future proceedings.
Because of Juliana, the Trump administration is on record admitting the truth about climate change not only as it has been cast by Juliana plaintiffs but by the Administration’s own scientists and the overwhelming majority of the world’s scientific community.
The now older, wiser, and even more motivated Juliana plaintiffs have already taken their case to the court of public opinion where it will continue to be joined by millions more climate defenders. The fight for climate justice has only just begun.
Lead image: Kayla Velasquez 199343/courtesy of unsplash.