Juliana v. United States

On December 26, 2018, the Ninth Circuit Court of Appeals granted the federal government’s petition for permission to appeal an Oregon federal court’s decisions allowing constitutional climate change claims brought by a group of young people to proceed. Judge Friedland dissented from the order, writing that she believed the district court’s statements in its order certifying the decisions for interlocutory appeal prevented the Ninth Circuit from permitting the appeal because the district court “expressed that it does not actually think that the criteria for certification are satisfied.” Certification for interlocutory appeal requires (1) that the “order involves a controlling question of law as to which there is substantial ground for difference of opinion,” and (2) that “an immediate appeal from the order may materially advance the ultimate termination of the litigation.” Judge Friedland said it appeared that the court “felt compelled” to declare that certification requirements were satisfied due the Supreme Court’s statements that “[t]he breadth of [the] claims is striking, … and the justiciability of those claims presents substantial grounds for difference of opinion” and by the Ninth Circuit’s echoing of those statements. Judge Friedland noted that the decision whether to certify was left to the district court’s discretion, and that while the Ninth Circuit and the Supreme Court might be “as well-positioned as the district court” to consider the first “purely legal” requirement for certification, the district court “is far better positioned” to assess the second requirement, which concerns “how to resolve the litigation most efficiently.” In a footnote, Judge Friedland wrote that “[i]t is also concerning that allowing this appeal now effectively rewards the Government for its repeated efforts to bypass normal litigation procedures,” and that “[i]f anything has wasted judicial resources in this case, it was those efforts.”

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