The 21 young plaintiffs who lost their ambitious climate lawsuit against the federal government are seeking another shot to make their case in court, a move that could push the dispute toward risky legal territory.
The kids and young adults in Juliana v. United States on Monday asked the U.S. Court of Appeals for the Ninth Circuit to rehear the case en banc, before 11 active judges on the court. A smaller panel of three judges ruled against the plaintiffs in January.
The “kids’ climate case” is one of the most sweeping legal efforts to date to force federal action on climate change. First filed in district court in Oregon in 2015, it says the plaintiffs have a constitutional right to a safe climate system and the government has violated that right by approving and promoting fossil fuel development.
The case never made it to trial in Oregon, ping-ponging through the federal court system until the Ninth Circuit finally spiked it this year. The panel ruled 2-1 that the judicial branch lacked authority to address the plaintiffs’ concerns.
Our Children’s Trust attorney Julia Olson, who represents the young litigants, said the panel shirked its responsibility to decide constitutional disputes.
“What the majority did instead was set up a straw man to attack, and the straw man is, can the court solve global climate change?” she said in an interview before filing Monday’s petition. “And that is not what we have asked the court to do.”
The plaintiffs are asking the court to decide whether the federal government is endangering young people and violating the Constitution, Olson said. At minimum, she said, the court could resolve that question.
“What these children seek first and foremost is a fair trial of the evidence, followed by an application of constitutional law to the proven facts, and a declaration of their rights and their government’s responsibilities,” the petition says.
To grant rehearing, a majority of the Ninth Circuit’s 29 active judges would have to agree to review the panel decision, and then a pool of 11 would hear arguments and issue a new decision.
Outside Critics? ‘They’re Not My Clients’
Many lawyers from private practice, the environmental community, and academia have warned against pushing the case too far.
They say the plaintiffs lost in the best way possible before the Ninth Circuit panel, getting a narrow ruling that didn’t question the validity of climate litigation but rather concluded that the kids didn’t meet the legal standard for bringing the case.
William Snape III, a Center for Biological Diversity attorney and law professor at American University, said “the plaintiffs are so close that I do see the logic in moving forward.” Case Western Reserve University law professor Jonathan H. Adler said the plaintiffs are probably safe in seeking en banc review because the Ninth Circuit rarely grants rehearing, “so the likelihood of provoking Supreme Court review is relatively low.”
University of California at Los Angeles law professor Ann Carlson warned, however, that success at the Ninth Circuit would likely land the case before a skeptical Supreme Court. Even seeking en banc review carries risks, she said, pointing to President Donald Trump’s 10 appointees to the bench. The court could end up issuing a opinion far harsher than the three-judge panel’s decision, she said.
Olson, the lawyer for the plaintiffs, pushed back on what she called “fear-based” expectations about the case’s prospects in further court proceedings.
“If I told my clients, ‘Look, people think we should cut our losses and accept this loss because it’s not too bad,’ my clients would reject that advice,” she said. “And rightly so.”
“I don’t represent the legal community or the law professors or other litigators who are expressing concern,” she added. “They’re not my clients. I have an ethical obligation to my young clients. I do not see any benefit to them in not pursuing the appellate channels we have to at the end of the day deliver justice to them.”
Olson said she’s confident a majority of Ninth Circuit judges will see merit in allowing the case to move forward to trial in Oregon. She noted that the appeals court has a strong track record of granting rehearing in cases involving children’s rights.
As for a future Supreme Court fight? “We’re just taking it one step at a time,” Olson said.
The case is Juliana v. United States, 9th Cir., No. 18-36082, petition for rehearing 3/2/20.