Serious legal risks lie ahead for the 21 young plaintiffs who are pushing forward in court after losing their ambitious climate change lawsuit against the federal government.
A three-judge panel for the U.S. Court of Appeals for the Ninth Circuit on Jan. 17 blocked the litigants from moving ahead with claims that federal policies enabled and accelerated global temperature rise, ruling 2-1 that the judicial branch simply lacks power to fix the issue.
The Juliana v. United States plaintiffs quickly vowed to ask the Ninth Circuit to reconsider the case en banc, before a larger group of judges.
“Much like the civil rights cases, we firmly believe the courts can vindicate our constitutional rights and we will not stop until we get a decision that says so,” 12-year-old Florida resident Levi Draheim, one of the plaintiffs, said in a statement after the ruling.
But many legal experts say the circuit court is unlikely to revisit the decision and warn a trip to the Supreme Court would be too risky.
“The general rule, of course, is you don’t want an adverse Supreme Court decision, and it’s as simple as that,” said Foley Hoag LLP attorney Seth D. Jaffe, who tracks environmental litigation across the country. “They’re going to lose before the Supreme Court, almost certainly, so why take the chance?”
Supreme Court Danger
The prospect of the so-called kids’ climate case ultimately reaching the Supreme Court causes anxiety for many environmental lawyers.
The recent opinion from the Ninth Circuit panel was confined to narrow issues. The majority didn’t make any sweeping pronouncements about the validity of climate litigation in general. It zeroed in on part of a test for legal standing: whether the court had the power to address the government behavior the plaintiffs had challenged.
Experts say a trip to the Supreme Court—if one side successfully persuades the justices to get involved after the Ninth Circuit is done with the case—would likely prove much more damaging to the plaintiffs, and the environmental movement.
Case Western Reserve University law professor Jonathan H. Adler warned that “the possibility that a decision would say or do something that is broader and that precludes a wider range of climate litigation is very real.”
“The real danger is inviting the conservative majority to start pronouncing about standing doctrine,” said Robert Percival, a University of Maryland law professor who follows environmental cases at the Supreme Court.
Conservatives have long sought to tighten standing requirements for citizen suits in which there is a more attenuated link between a polluter’s action and harm to a plaintiff.
Percival and Ann Carlson, a law professor at University of California at Los Angeles, said some justices could view a Juliana petition as an opportunity to reel in precedents that made it easier for environmental litigants to get to court, including the landmark Massachusetts v. EPA climate case in 2007 and the 2000 water pollution case Friends of the Earth v. Laidlaw.
“That’s a huge risk,” Carlson said. “Then you could get a precedent that really affects other environmental cases.”
Rolling the Dice?
Still, it’s unclear whether the justices would agree to take up a future petition for review. If the Ninth Circuit declines to rehear the case, and the young plaintiffs file a Supreme Court petition, the justices could also decline to hear the case, leaving intact the narrow panel decision.
On the other hand, said Foley Hoag’s Jaffe, the court’s liberal wing could vote to hear the case if they thought the benefits of a public airing outweighed the risks of unfavorable precedent for environmental litigants.
“‘Well, is it worth it to put my colleagues on record as condemning the planet to destruction?’” Jaffe said, musing about the justices’ potential calculus.
William Snape, a Center for Biological Diversity attorney and law professor at American University, said the plaintiffs’ rehearing request will spur a valuable extra round of legal briefs tackling the standing issues that the panel raised in the Jan. 17 decision.
“I don’t think it’s rolling the dice to seek en banc, though some might see that,” he said. It’s rather “much more a progressive narrowing of the issues to the point where ‘remedy’ might actually be fully briefed and debated; that discussion only helps the plaintiffs, in my opinion.”
However, the odds of the Supreme Court’s involvement go up significantly if the Ninth Circuit agrees to rehear the case and ends up siding with the plaintiffs. A majority of the circuit court’s 29 active judges—more than half of whom are appointees of Democratic presidents—would have to agree to review the panel decision, and then a pool of 11 would hear arguments and issue a new decision.
If the Ninth Circuit ended up siding with the plaintiffs, the Supreme Court would almost certainly get involved. That makes the plaintiffs’ rehearing request itself a risky proposition, according to the University of California’s Carlson.
“There’s no way this Supreme Court would let a victory stand,” she said.
The case is Juliana v. United States, 9th Cir., No. 18-36082.
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