Recent legal gymnastics may have rung a death knell for a climate case with a presumptuous goal. Force the government to do something today to address the prophesied future effects of climate change, to protect children including (presumably) those not yet born.
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 plaintiff’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.
Disregarding that no one who predicts these effects has been right or even close about anything the matter of standing is undoubtedly an issue. Some of these “plaintiffs” are not alive yet. It is challenging to consider options for relief where no harm has been done. And how does a court, at least in what is meant to pass as a Constitutional Republic, measure that remedy otherwise?
It can’t. Nor would we want the court to try. Not that this would stop one from making such an effort.
What Stalled it and Why Might This End It?
I’m not clear on all the subtler points of the aforementioned legal gymnastics, so I’ll let Mr. Alder do the talking.
It is also not clear that the[se] are the sort of question[s] 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. …
Long legalize top-heavy story short? The very fact that the case can’t be adequately adjudicated will be its demise, and that fact should be allowed to be questioned, worked out and resolved. Hopefully before some fool gets it the 9th circuit where I suspect they are encouraged to make it go away.
As a closing note, where’s the suit alleging harm created by the national debt and profligate spending? Congress has already disposed of trillions of dollars without substantive due process rights or consideration of future generations lives, liberty, and importantly property?
