Fighting for the Planet

Fighting for the Planet

By Deborah Lohse

Juliana v. US plaintiff Sahara (left) prepares to enter the Ninth Circuit Court of Appeals in San Francisco on Dec. 11. Photo by Robin Loznak
Lawyer for 21 youth plaintiffs suing the government over CO2 levels argued to let their case proceed.

The case some call “the most important lawsuit on the planet” may be one step closer to having its day in court.

On Dec. 11, the two sides in the case of Juliana v. U.S. presented oral arguments to the 9th Circuit Court of Appeal in San Francisco. The case involves 21 young people who are suing the U.S. government, alleging it has violated a newly “enumerated” constitutional right—the right to a livable planet—by promoting CO2-causing fossil fuels. The youth seek remedies such as a national carbon-reduction plan and cessation of federal support for fossil fuel industry.

Lead counsel for the young plaintiffs are Julia Olson, executive director of Our Children’s Trust, and Phil Gregory, a 1980 J.D. and MBA alumnus of SCU and partner with Cotchett, Pitre and McCarthy.

During 52 intense minutes of oral arguments, the Trump Administration’s Department of Justice argued that a highly unusual “writ of mandamus” should be used to throw the case out, arguing the district court should not have permitted this “extraordinary case” to proceed.

“Plaintiffs assert meritless claims that both exceed the district court’s prescribed jurisdiction and presage a constitutional confrontation between the branches,” argued DOJ attorney Eric Grant.

Phil Gregory J.D./MBA ’80 holds his granddaughter in front of court, Monday. Behind Gregory, a sign reads My Grandpa is Saving the World.

Two judges on the three-judge panel—Marsha Berzon and Sidney Thomas—expressed concern that it would be premature to grant the writ now, before trial or even before any court orders had been issued. “If that were true we’d be absolutely flooded with applications from people who think their case should have been dismissed by the district court,” said Thomas. “There’d be no logical boundary to it.”

But the judges—especially Judge Alex Kozinski—also expressed some skepticism about the lawsuit.

Judge Kozinski noted that if the plaintiffs win, a district court in Oregon would have extraordinary power to dictate federal climate policy. He also questioned whether a single district court should be able to declare a brand-new constitutional right to a climate system capable of sustaining human life.

“Isn’t that the kind of stuff we leave to the Supreme Court to tell us?” he asked. “Should in theory federal courts be creating causes of action that are really, really removed from any precedent?”

Olson quickly responded that in historic precedent-setting cases including Brown v. the Board of Education and Brown v. Plata, “it is the province of district courts to develop the factual records, the historic records, here the scientific record, that will form the basis of the fundamental rights analysis.”

Judge Thomas asked whether, even if the youth win, the district court really had the power to remedy the problem of CO2 accumulation as requested. “I have some doubts about whether the harm is redressable,” he said, referring to one of the legal factors in considering whether to grant the writ.

Olson replied that what the youth want is “a judicial safeguard against the further deprivation of their rights,” and that the court—while not taking over management of federal energy policy—would “order federal defendants to develop a plan to come into constitutional compliance.”

Judge Berzon, who was the most vocal in implying the writ was premature, said she thought the case would benefit from being narrowed in scope. The current list of 23 defendants includes the President of the United States, and the leaders and departments of the Interior, Bureau of Land Management, Environmental Protection Agency, and more.

“I would hope if this case did go forward it would be pared down and focused and directed at particular orders or agencies,” said Berzon.

What’s next? Before the arguments, Gregory predicted the ruling might come out in January, and, regardless of outcome, would likely be appealed to an 11-member en banc panel of the 9th Circuit. Any appeal would mean the current Feb. 5, 2018, court date will likely be delayed.

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