At Ninth Circuit Court of Appeals, crowd forms for children's climate case hearingCrowd gathers outside the Ninth Circuit Court of Appeals for hearing the the youth climate case against the U.S. government. Photo credit: Our Children's Trust via Twitter

By Dana Drugmand

In deciding whether the landmark youth-led climate change lawsuit Juliana v. United States allowed to proceed to trial, two of the three appeals court judges that heard a government appeal on Monday strongly suggested throwing the case out at this step would open a judicial can of worms.

In considering the government’s writ of mandamus request, a rarely used judicial tool that overturns a lower court before a trial has occurred, a three-judge panel of the Ninth Circuit Court of Appeals in San Francisco, heard arguments from the government that the case warranted such an extraordinary intervention. But both Judge Marsha Berzon and Chief Judge Sidney Thomas said that if the court decided it was appropriate to grant mandamus to overturn the district court ruling, there would be a “flood of cases” seeking to overturn unfavorable rulings by lower courts.

“If we grant the motion here, why don’t we grant it to the next person who comes in and says the same thing?” Judge Berzon questioned.

“We’d be absolutely flooded with appeals from people who think that their case should have been dismissed by the district court,” Judge Thomas added. “If we set the precedent on this kind of case, there’s no logical boundary to it.”

The three judges are considering whether to allow the case to proceed to its February trial date, which was ordered by U.S. District Judge Ann Aiken, when she refused the last government attempt to dismiss the lawsuit in November 2016. The government responded by requesting a stay of the case from the Ninth Circuit Court of Appeals, and also requesting the writ of mandamus, a tactic designed to correct an abuse of power by a public official or lower court.

Berzon asked Eric Grant, the deputy assistant attorney general who argued for the government’s request,  whether he is aware of a case in which a court granted mandamus under similar circumstances.

Grant said he couldn’t cite a specific case. Instead, he relied on a 2004 Supreme Court case, Cheney v. United States District Court, in which the Court ruled 7-2 that the lower courts acted “prematurely” in refusing to dismiss the case and halt discovery. The Supreme Court granted mandamus in that case, but as Berzon pointed out, the case was not ultimately dismissed.

Grant argued that the case would bring a clash between the powers of the executive branch with that of the judicial branch, a similar issue in the Cheney case. Grant repeatedly referenced the unprecedented nature of this case, claiming that allowing it to proceed would disturb the separation of powers as laid out in the Constitution. “This case is not like a run-of-the-mill case,” he said. “This case is unprecedented. If allowed to go forward, it will upset the separation of powers.”

The third judge on the panel, Alex Kozinski, brought up this separation-of-powers issue in questioning the youth plaintiffs’ attorney Julia Olson. Kozinski questioned what happens if the judicial branch decides favorably for the plaintiffs and orders some remedy, while the executive branch comes to a different conclusion and decides a different remedy is more appropriate. The potential tension between the two branches in determining climate and energy policy seemed to be a sticking point for him.

Despite Kozinski’s persistent grilling, Olson insisted the court’s participation is critical.  “It’s important that the court be that impenetrable bulwark, to judicially safeguard against systemic abuses of government power that infringe on the substantive due process rights of these plaintiffs,” she said.

She also countered Kozinski’s argument that the young plaintiffs had no more claim to a right to a safe climate than anyone else. “They will live far longer than you,” she said. “The significance of the harm, the monumental threat these injuries pose to the plaintiffs is very distinguishable.”

Following the hearing, the youth plaintiffs and supporters spoke about the importance of their lawsuit and their resolve to continue fighting for their future.

“We cannot allow our futures to be determined by those in power,” said 17-year-old plaintiff Xiuhtezcatl Martinez. “This lawsuit is a demonstration of us, young people, reclaiming our democracy.”

“No matter the actions of this court, we’re not giving up and we’re only getting stronger,” remarked 18-year-old plaintiff Victoria Barrett.

Lead plaintiff in the case, 21-year-old Kelsey Juliana, told Climate Liability News that the fundamental rights of youth are on the line in this case. “What’s at stake is further comprising our democracy and continuing to deny the constitutional rights of young people,” she said. “That’s why we’re on this case, to secure the rights we are granted, but that have been neglected for the past five decades by our government.”

Juliana said she feels confident the judges understood that it would be inappropriate to grant the writ of mandamus, and that the case would move forward. “I’m confident that we will, in fact, be going to trial where we can discuss the real issue which is the climate science and what the government knew and when.”