A three-judge panel of the Ninth Circuit heard oral argument on June 4 in Juliana v. United States, the potentially groundbreaking climate lawsuit by 21 youth plaintiffs that was filed against the federal government close to four years ago.
It has been a long, convoluted journey since then: In just the last year, the case made two trips to the US Supreme Court and at one point, the government had motions simultaneously pending before the district court, the Ninth Circuit, and the Supreme Court, all attempting—in one way or another—to put the brakes on the litigation. (I’ve previously written about the legal maneuvering that brought the dispute to the Ninth Circuit.)
Why has the government waged this unusually aggressive campaign to prevent the “climate kids” case from ever going to trial? As the federal district court judge in Oregon overseeing the case recognized, this is “no ordinary lawsuit.”
Plaintiffs have brought a number of claims grounded in the Constitution demanding that the federal government undertake a plan to “phase out fossil fuel emissions” and draw down excess carbon dioxide “so as to stabilize the climate system[.]” Consequently, this case has, technically speaking, set the government’s hair on fire.
You can watch the entire Ninth Circuit argument, but I would offer two cautions. First, for a number of reasons, it can be exceedingly difficult to predict an outcome based on questions from the bench. Oral arguments provide only a small, opaque window into judges’ thinking while much of the work in crafting their decision will happen behind closed doors.
Second, courtroom proceedings are rarely a riveting affair. Law school and years of legal practice have conditioned me to appreciate things like an extended colloquy over the appropriate standard of review (around 21:00) so I’m incapable of objectively evaluating the entertainment value here. You’ll have to make that assessment for yourself.
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But, if you are daunted by the prospect of an hour’s worth of sustained legalese, I’ll highlight one notable exchange.
Judge Andrew Hurwitz asked the plaintiffs’ attorney, Julia Olson, whether Congress and the US President could step in and provide the plaintiffs with an adequate remedy. Olson naturally hesitated, before expressing doubt about that likelihood given the current political landscape.
Judge Hurwitz’s response (at minute 35:20) distills the essence of the issue facing the Ninth Circuit:
“Well, we may have the wrong Congress and the wrong president. That’s occurred from time to time over history. The real question for us is whether or not we get to intervene because of that. . . . You present compelling evidence that we have a real problem, compelling evidence that we have inaction by the other two branches of government. It may even rise to criminal neglect. The tough question for me, and I suspect for my colleagues, is: do we get to act because of that?”
Sometime in the next 6 months to a year, we should learn the judges’ answer.
And then? Even if the plaintiffs are successful at this stage, it’s virtually guaranteed that the government will appeal to the Supreme Court. By the time the Supreme Court would be able to conclude its review, we might have leaders in Washington, D.C., with a very different perspective on climate change, perhaps bringing Judge Hurwitz’s initial scenario closer to reality.
Michael Mayer practiced environmental law in the Northwest for close to a decade and now teaches climate change law at Seattle University School of Law.