U.S. Ninth Circuit - The FindLaw 9th Circuit Court of Appeals Opinion Summaries Blog

Ninth Circuit Hears Arguments in Children's Climate Case

The Juliana v. United States matter was heard by a three judge panel of the Ninth Circuit Court of Appeals this week. And while some might expect that the most liberal circuit in the nation would have been throwing softballs to plaintiffs' attorney, the tenor of the questioning was equally harsh on both sides.

Notably, prior to the appeal, the Ninth Circuit issued a stay in the matter, pending their review. The case involves a group of children filing suit against the federal government due to its alleged actions that cause and contribute to climate change.

Is the Appeal Premature?

Justice Kozinski put the plaintiffs' counsel through the wringer. At one point he suggested she stop calling it an unprecedented case because "an unprecedented case [...] may require [an] unprecedented decision." He pleaded: "Persuade me there's a cause of action." And he seemed to desperately be looking for solid precedent showing that the government is required to manage federal land in a way that will prevent harm caused to others.

The government attorney argued rather strongly that the plaintiffs in the matter simply don't have standing to bring the cause of action, and additionally that the plaintiffs don't even have a valid cause of action. Unfortunately, because the matter has not reached a final decision on the merits, and the federal district court judge refused to certify the order denying the motion to dismiss for appeal, the government was left with no other avenue to appeal other than filing for mandamus.

As each of the justices noted in their questioning, and particularly Judge Thomas, due to the current procedural posture, the government's appeal seems premature. Judge Berzon sharply asked whether the government could still file for summary judgment, to which the government's lawyer sheepishly responded that they could. And when Justice Berzon pressed the attorney for some order of the court for which the defendants were seeking the extraordinary relief of mandamus, there was none. Berzon seemed to suggest that any of the problems with the case being claimed on this mandamus motion could be resolved via a normal appeal, at the conclusion of the underlying case.

Concluding the oral arguments, the government attorney, while being pressed by Judge Berzon that the case relied upon was inapposite to what it sought, actually said the following: "This court has exceeded its jurisdiction. This court is on a collision course with the executive branch."

Editor's note, 12/12/17: This article has been updated to more accurately describe the plaintiffs' claims.

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