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December 11, 2018

District Court Judge Certifies Kids’ Climate Change Case for Immediate Appeal


On November 21, Judge Ann Aiken of the Oregon District Court stayed Juliana v. United States—the so-called kids’ climate change lawsuit—and immediately certified the case for interlocutory appeal.  Judge Aiken’s order ultimately reversed her prior refusals to certify for appeal the denials of the government defendants’ dispositive motions.  Plaintiffs subsequently filed a motion requesting that Judge Aiken reconsider her order in part and lift the stay.  This article briefly reviews the case background and procedural history before further discussing these recent developments. 

Case Overview

In 2015, youth plaintiffs aged nineteen and younger, along with environmental advocacy organization Earth Guardians and former NASA climate scientist Dr. James Hansen on behalf of future generations, filed a lawsuit in the District of Oregon against the United States and various federal officials and agencies.  Plaintiffs alleged that the federal government “deliberately allowed atmospheric CO2 concentrations to escalate to levels unprecedented in human history” in violation of plaintiffs’ fundamental constitutional rights.  Plaintiffs demanded that defendants reduce carbon dioxide emissions so that atmospheric concentrations will be no greater than 350 parts per million by the year 2100. 

Relevant Procedural History

Defendants’ Motion to Dismiss Denied.  The federal defendants filed a motion to dismiss in November 2015 alleging a number of threshold defects with plaintiffs’ lawsuit.  Defendants argued lack of standing for both the future generation plaintiffs and plaintiffs at large; failure to allege injury-in-fact; lack of redressability; nonjusticiable separation-of powers; and lack of jurisdiction over the public-trust doctrine arising under state law.  Judge Aiken denied defendants’ motion in its entirety in November 2016 and subsequently denied defendants’ related request for interlocutory appeal in June 2017. 

Ninth Circuit Declines to Hear Writ.  The day after Judge’s Aiken refused to grant defendants’ interlocutory appeal, the government defendants filed a writ of mandamus in the Ninth Circuit requesting a stay of the district court proceedings.  In March 2018, the appellate court declined to intervene. 

Defendants’ MSJ Granted In Part, Denied In Part.  On October 15, 2018, Judge Aiken granted in part and denied in part defendants’ motions for judgment on the pleadings and summary judgment. The court allowed plaintiffs’ primary due-process and public-trust claims to proceed, but dismissed President Trump from the action and rejected plaintiffs’ Ninth Amendment and equal-protection claims.

Supreme Court Stays Case and Vacates Trial; Later Lifts Stay.  On October 19, 2018, the Supreme Court issued an administrative stay related to the federal defendants’ petition for writ of mandamus filed on October 18.  Pursuant to its order, the Court vacated the October 29 trial date.  On November 2, the Court denied the writ and the stay without prejudice, finding that the government should first pursue mandamus relief in the Ninth Circuit.

Ninth Circuit Stays Case Pending Consideration of Writ.  Defendants then belatedly filed a writ petition in the Ninth Circuit.  On November 8, the appellate court further stayed trial of the case pending that court’s consideration of the government’s petition for mandamus.  In addition, the Ninth Circuit strongly encouraged the district court to reconsider its prior refusal to certify for interlocutory appeal the denial of defendants’ dispositive motions.  The district court’s November 21 decision followed.    

Recent Developments

District Court Grants Interlocutory Appeal.  On November 21, Judge Aiken reversed her prior decisions and reluctantly certified for immediate appeal the denial of the government defendants’ motion to dismiss, as well as the denial in part of their motions for summary judgment and judgment on the pleadings.

In her order, Judge Aiken painstakingly detailed federal jurisprudence discouraging the practice of granting interlocutory appeal, noting for example that “interlocutory certification is certainly the exception rather than the rule in appellate review” and the Supreme Court’s statement that “[p]ermitting piecemeal appeals would undermine the independence of the district judge.”  Judge Aiken then reiterated the district court’s position that holding the liability phase of the Juliana trial before any appeal was the better option.  In Judge Aiken’s view, reserving the question of interlocutory appeal until after the close of the liability phase would permit any reviewing court to “consider the parties’ arguments on appeal with the benefit of a fully developed factual record.”         

Nonetheless, pointing to the Ninth Circuit’s “extraordinary order,” Judge Aiken exercised the court’s discretion and immediately certified the case for interlocutory appeal and stayed proceedings in the interim.   

Plaintiffs Request Reconsideration of Stay.  On December 5, plaintiffs filed a motion seeking reconsideration of Judge Aiken’s November 21 stay of the case.  Specifically, plaintiffs requested that the court lift the stay to allow discovery and pretrial proceedings to conclude pending a decision by the Ninth Circuit on defendants’ interlocutory appeal.  This would allow, according to plaintiffs, trial to commence immediately if the Ninth Circuit ultimately lifts its November 8 stay of trial.  Plaintiffs called the stay “highly prejudicial” and requested expedited consideration of their motion. 

Next Steps

It remains to be seen whether Judge Aiken modifies her November 21 order and lifts the stay.  Although it seems unlikely she would reverse course a second time, the judge was clearly reluctant to grant defendants’ request for interlocutory appeal last month.  Lifting the stay could be a way for the district court to commence proceedings again while honoring the Ninth Circuit’s instructions to permit interlocutory appeal.    

Additionally, there is the question of which issues the Ninth Circuit will address in its forthcoming order. Since defendants’ appeal contains multiple threshold issues like Article III standing, traceability, redressability, political-question doctrine, separation of powers, subject-matter jurisdiction, and overall viability of plaintiffs’ legal theories, the Ninth Circuit’s opinion could foreseeably be quite narrow, or overwhelmingly broad. 

The Ninth Circuit docket for Juliana v. United States is available on PACER using docket number 18-73014. The District Court docket is accessible using 6:15-cv-01517. 

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