Juliana v. United States

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The plaintiffs withdrew their motion to stay the mandate “[b]ecause Defendants’ position is clear that the issuance of the mandate does not preclude settlement or Plaintiffs’ ability to seek future relief from the issuance of the mandate.”

The federal defendants filed their opposition to the motion to stay the mandate, arguing that the Supreme Court was unlikely to grant the petition, “much less reverse this Court’s judgment,” because the Ninth Circuit had applied settled precedent. The U.S. defendants also contended that the plaintiffs would not suffer irreparable harm, given that they would be able to obtain relief if the Supreme Court ruled in their favor. The defendants also noted that issuance of the mandate “is no impediment to settlement” since settlement remained possible so long as a case was pending, even if pending before the Supreme Court.

The plaintiffs filed a motion to stay the mandate pending the filing and disposition of a petition for writ of certiorari in the Supreme Court. The plaintiffs contended that their certiorari petition would present substantial questions meriting Supreme Court review regarding the rights of children, and that there was good cause to stay the mandate due to the irreparable harm that would result from dismissal of the case. The plaintiffs’ arguments included that the Biden-Harris administration should be allowed the opportunity to decide whether to engage in settlement negotiations.

The Ninth Circuit Court of Appeals denied youth plaintiffs’ petition for rehearing en banc of the court’s January 2020 ruling that the plaintiffs lacked standing to pursue their constitutional claims against the United States and other federal defendants for infringing on the plaintiffs’ right to a life-sustaining climate system.

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On March 24, 2020, the federal defendants filed their opposition to the rehearing petition. They argued that the panel had properly concluded that the plaintiffs sought no relief that the courts had the power to grant and that the plaintiffs failed to establish that the relief sought would “substantially redress” their injuries. The defendants also contended that there was no legal question of exceptional importance that warranted rehearing.

Children’s rights advocates filed a brief contending that the majority overlooked precedent recognizing “a special judicial role in protecting children where children are explicitly excluded from influencing policies detrimental to them.”

Environmental groups argued that the majority improperly “infused political question principles into redressability analysis” and “failed to recognize that partial redressability is sufficient to establish standing,” which could create obstacles for the groups to obtain relief in the future.

Two former Surgeons General argued that where the health and lives of children are at stake courts should intervene since children have no remedy at the “ballot box.”

Academic centers focused on issues of race, racial justice, and environmental justice said they supported rehearing because they were “deeply concerned that the majority’s decision will make it more difficult for individuals and groups to safeguard their civil rights in the courts.”

International organizations and lawyers submitted a brief describing foreign jurisprudence that supported the redressability of the plaintiffs’ claims and judicial ability to review climate policies.

Two League of Women Voters organizations and the National Children’s Campaign contended that the majority opinion “contravenes longstanding precedent and abdicates the judiciary’s duty to safeguard fundamental rights, particularly those of children without voting power.”

Members of Congress asserted that the courts had the power and the duty to remedy the plaintiffs’ constitutional injuries.

Public health experts and organizations and doctors submitted a brief describing the risks climate change poses to children’s health.

Seventeen of the experts who had prepared expert opinions in the Juliana case said their opinions went “to the salient issues in this case, including the ability of the federal government to redress the youth plaintiffs’ injuries.”

Law professors argued both that “the panel’s majority incorrectly invoked the political question doctrine in determining whether youth plaintiffs possess standing” and that there were “well-established judicially discoverable and manageable constitutional standards” to evaluate and remedy the plaintiffs’ claims.

The plaintiffs in Juliana v. United States sought en banc reconsideration of the Ninth Circuit’s ruling that they did not have standing to pursue their claims against the federal government for alleged violations of their constitutional rights, including a substantive due process right to a “climate system capable of sustaining human life.” The plaintiffs argued that the Ninth Circuit majority made “significant errors of law,” including by finding that declaratory relief was not sufficient to establish the redressability prong of standing. The plaintiffs also argued that the Ninth Circuit majority erroneously rejected partial redress of injury as a basis for standing, incorrectly concluded that Article III courts lacked power to institute a remedial plan to redress the plaintiffs’ injuries, and improperly “created a new redressability test infused with the political question analysis” from Supreme Court precedent. The plaintiffs contended that the Ninth Circuit’s decision therefore met every test for en banc reconsideration since it implicated “profoundly important issues” of catastrophic climate change harms to children; conflicted with Supreme Court, Ninth Circuit, and sister circuit law; and affected the national uniformity of the application of the law of redressability. The plaintiffs asserted that an en banc rehearing was particularly appropriate in this case because it involved children’s constitutional rights. They said that over the past decade, the Ninth Circuit had “consistently granted rehearing in cases where children’s constitutional rights were denied by the 3-judge panel, only denying rehearing in such cases where the 3-judge panel originally upheld the children’s rights or allowed them to pursue their claims in another tribunal.”

In a split decision, the Ninth Circuit Court of Appeals ruled that young people and other plaintiffs asserting a claim against the federal government for infringement of a Fifth Amendment due process right to a “climate system capable of sustaining human life” did not have Article III standing. The Ninth Circuit therefore reversed the orders of the federal district court for the District of Oregon denying the government’s motions to dismiss and for summary judgment and judgment on the pleadings. The Ninth Circuit rejected the government’s argument that the plaintiffs’ constitutional claims had to be brought pursuant to the Administrative Procedure Act and agreed with the district court that the plaintiffs met the injury and causation requirements for Article III standing because at least some plaintiffs had alleged concrete and particularized injuries caused by fossil fuel carbon emissions that were increased by federal subsidies and leases. The Ninth Circuit found, however, that the plaintiffs had not established the redressability requirement for standing. The court said it was “skeptical” that even the first prong of redressability—that the relief sought be substantially likely to redress the plaintiffs’ injuries—was satisfied, noting that the plaintiffs conceded “that their requested relief will not alone solve global climate change.” The Ninth Circuit further concluded that even if the first prong was satisfied, the plaintiffs did not “surmount the remaining hurdle” of establishing that the relief they sought was within the power of Article III courts. The majority wrote that “[t]here is much to recommend the adoption of a comprehensive scheme to decrease fossil fuel emissions and combat climate change, both as a policy matter in general and a matter of national survival in particular,” but said it was beyond judicial power “to order, design, supervise, or implement the plaintiffs’ requested remedial plan.” The majority said it “reluctantly” concluded that “the plaintiffs’ case must be made to the political branches or to the electorate at large” and “[t]hat the other branches may have abdicated their responsibility to remediate the problem does not confer on Article III courts, no matter how well-intentioned, the ability to step into their shoes.” The dissenting judge would have held that the plaintiffs had standing and that they had asserted claims under the Constitution and presented sufficient evidence to proceed to a trial. The dissent contended that “a federal court need not manage all of the delicate foreign relations and regulatory minutiae implicated by climate change to offer real relief, and the mere fact that this suit cannot alone halt climate change does not mean that it presents no claim suitable for judicial resolution.”

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On May 28, the plaintiffs identified another Ninth Circuit decision as relevant to the issue of whether the district court had appropriately determined that the plaintiffs’ evidence was sufficient to defeat summary judgment on the standing issue.

On May 22, the plaintiffs filed a motion seeking judicial notice of certain federal government documents released since the plaintiffs completed briefing on their urgent motion, including documents concerning the effects of a fossil fuel-based energy system and press releases on new authorizations for coal, oil, and gas extraction on public lands and in federal offshore areas. The plaintiffs asserted that the documents both “provide additional evidence of Defendants’ systemic practices that serve to intensify and lock in Plaintiffs’ irreparable harms” and also “confirm the severity of Plaintiffs’ irreparable injuries by presenting additional evidence that the U.S. fossil fuel-based energy system is further expanding.”

On May 20, the plaintiffs wrote to bring President Trump’s Executive Order 13868 on “Promoting Energy Infrastructure and Economic Growth” to the Ninth Circuit’s attention, arguing that the order was relevant to their standing to challenge federal energy policies and practices.

The government responded to the plaintiffs' May 8 notice of supplemental authority, arguing that the case was not pertinent to any of these issues.

On May 8, the plaintiffs wrote that the Ninth Circuit’s recent decision in an action challenging statewide policies and practices in Arizona’s foster care system was pertinent to the Juliana plaintiffs’ standing, as well as to the issues of judicial authority to hear systemic due process cases and the plaintiffs’ state-created danger claim.

The Ninth Circuit Court of Appeals scheduled oral argument for the federal government’s appeal in Juliana v. United States to take place in Portland, Oregon, on Tuesday, June 4, 2019, at 9:30 AM. Briefing was completed on March 8 when the federal government filed its reply brief. The government rearticulated its arguments that the plaintiffs lacked standing and that their lawsuit was not a cognizable case or controversy under Article III of the Constitution. The government contended that a “quick look at the climate change issues and actions pending before Congress and the Executive Branch”—including the Green New Deal, carbon tax legislation, and the replacement for the Clean Power Plan—“confirms that Plaintiffs have petitioned the wrong branch.” The government also argued that the plaintiffs were required to proceed under the Administrative Procedure Act and that their constitutional claims failed on the merits. In addition, the government countered the plaintiffs’ argument that the Ninth Circuit should reconsider its decision to permit the appeal.

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Faith organizations filed an amicus brief describing “the religious and moral bases for the concept of the public trust and the obligations to future generations, both of which can be found in the underlying values and doctrines of many faiths and religious beliefs.”

International Lawyers for International Law submitted an amicus brief “in the interest of ensuring the proper understanding and application of both domestic and international law on the right to a judicial remedy when fundamental rights are infringed.”

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On February 22, 2019, the plaintiffs filed their answering brief on the merits of the appeal. The brief began by asking the Ninth Circuit to reconsider its certification of the interlocutory appeal. The plaintiffs argued that the district court orders did not address most of the plaintiffs’ claims, meaning that—except for the issues relating to standing and whether the lawsuit was required to be brought under the Administrative Procedure Act (APA)—the case would go forward regardless of how the Ninth Circuit ruled. The plaintiffs further argued that the APA and standing issues did not meet the test for interlocutory review. The plaintiffs then proceeded to argue that the district court had jurisdiction of the case, that the district court had not erred in allowing the case to proceed directly under the Constitution, and that they had asserted valid substantive due process, state-created danger, and public trust claims.

On February 19, 2019, the government filed its opposition to the plaintiffs’ motion, asserting that it should be denied both because of the plaintiffs’ “long delay” in seeking preliminary relief and also because the plaintiffs did not satisfy any of the four factors for preliminary injunctive relief. The government argued that the timing of the plaintiffs’ motion exposed their strategy of delaying appellate review since interlocutory appellate review would have been automatic had the plaintiffs sought and received preliminary injunctive relief. On the merits of the motion, the government contended that the plaintiffs were required to meet a heightened standard since they sought relief that went “well beyond simply maintaining the status quo.” Reiterating the arguments made in its opening brief, the government said the plaintiffs were unlikely to prevail on their claims. The government also argued that the plaintiffs had not met their burden of showing that they would be irreparably harmed in the absence of the relief during the pendency of the appeal. Finally, the government asserted that the balance of harms and the public interest both weighed against granting injunctive relief. The government again cited the plaintiffs’ delay in seeking preliminary relief and contested the plaintiffs’ “blithe assertion” that the injunction would not result in harm to employment, the economy, energy security, or the treasury.

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On February 7, 2019, the youth plaintiffs in the climate change-based constitutional case against the federal government filed an “urgent motion” in the Ninth Circuit Court of Appeals seeking a preliminary injunction pending the resolution of the government’s appeal of the Oregon district court’s denial of the governments’ motions to end the case. The plaintiffs asked the court to bar the government from authorizing the following activities “in the absence of a national plan that ensures the … authorizations are consistent with preventing further danger” to the plaintiffs: (1) mining or extraction of coal on federal public lands; (2) offshore oil and gas exploration, development, or extraction on the Outer Continental Shelf; and (3) development of new fossil fuel infrastructure such as pipelines and fossil fuel export facilities. The plaintiffs argued that the immediate relief was necessary to preserve their ability to obtain a remedy that would address their injuries and protect the public interest. The plaintiffs filed 16 declarations in support of their motion, including the declarations of several individual plaintiffs attesting to “intense impacts to their mental and emotional wellbeing” and declarations of the plaintiffs’ experts on climate science, climate change impacts, and the connection between climate change and the government’s decisions and actions.

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On February 4, 2019, the Ninth Circuit announced that oral argument in the Juliana v. United States appeal would be calendared during the week of June 3-7, 2019 in Portland, Oregon. The court later also sought information on the parties’ availability during the weeks of July 8 and October 21.

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The government filed its opening brief in the appeal on February 1. The government argued that the plaintiffs lacked standing and that the lawsuit “is categorically not a case or controversy within the meaning of Article III” because it would require courts to “review and assess the entirety of Congress’s and the Executive Branch’s programs and regulatory decisions relating to climate change and then to pass on the comprehensive constitutionality of all of those policies, programs, and inaction in the aggregate.” The government also contended that the plaintiffs were required to proceed under the Administrative Procedure Act and that their constitutional claims were without merit. In addition, the government asserted that there was no federal public trust doctrine and that, even if there were, the Clean Air Act had displaced it. The government further argued that even if the federal public trust doctrine existed and had not been displaced, it would not cover the “climate system” or atmosphere.

On January 7, 2019, the Ninth Circuit set an expedited briefing schedule for the government’s appeal, partially granting the plaintiffs’ motion to expedite the schedule. The government must file its opening brief by February 1, a response brief is due February 22, and an optional reply brief would be due March 8. The court denied as moot the government’s request that its obligation to respond to the motion to expedite be postponed due to the government shutdown.

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