Julia Olson, who represents the young plaintiffs in Juliana v. United States, speaks at the Supreme CourtJulia Olson, co-counsel for the young plaintiffs in Juliana v. United States, spoke about her case in front of the Supreme Court in April. Photo credit: Robin Loznak

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By Dana Drugmand

The federal government is asking the Supreme Court once again to intervene and halt proceedings in the youth climate change lawsuit Juliana v. United States. The landmark case is set to go to trial at the federal district court in Eugene, Ore., in less than two weeks.  

In its latest effort to evade trial, the Department of Justice on Thursday filed both a petition for a writ of mandamus and an application for a stay in the Supreme Court. The stay asks the Court to put the brakes on the proceedings—effectively stopping the upcoming trial—while the court reviews the petition for mandamus. That petition asks the court to overrule the U.S. District Court and the Ninth Circuit Court of Appeals, which have paved the way for the case to go to trial on Oct. 29.  

The government said the continued appeals—writs of mandamus are rarely used and even more rarely granted because they usurp the usual judicial process—are appropriate because the government seeks to avoid what it calls an “unjustified trial that would ‘threaten the separation of powers.’”

The case has so far survived multiple attempts by the government to dismiss it and to delay and stop proceedings. The government recently filed a motion with the District Court and a petition with the Ninth Circuit seeking a stay of the trial. The federal government indicated in its filings its intention to seek Supreme Court review, making this the second time it has tried to stop the case at all three levels of the federal court system.

The Supreme Court has already denied a request for a stay. On July 30, the Court rejected the government’s stay application, allowing the case to proceed toward trial. The court order called the government’s request for relief “premature,” though it also noted that plaintiffs’ claims were “striking” in their breadth and presented grounds for differences of opinion. The denial was ordered without prejudice, meaning that defendants could try again.

With the Ninth Circuit Court twice rejecting the government’s petitions for mandamus and with District Court Judge Ann Aiken repeatedly denying attempts to stop or delay proceedings—including in a sweeping ruling on Monday—the government is turning once more to the Supreme Court.

“The government therefore has no choice but to ask this Court once again to intervene—and to end this profoundly misguided suit,” Department of Justice attorneys wrote in their petition for mandamus. The government argues that mandamus relief is appropriate given that it has exhausted all other means to stop proceedings.

Philip Gregory, co-counsel for the youth plaintiffs, said the government’s motions were acts of desperation. “They’re throwing a lot of spaghetti at the wall hoping some of it sticks,” Gregory said. He noted that the government is not even waiting for the Ninth Circuit to act on a mandamus petition filed last Friday.   

“It doesn’t seem that there’s a very sensible strategy here other than stop, delay, or anything that will work,” said Jennifer Rushlow, director of the Environmental Law Center at Vermont Law School. “It certainly seems as though [the government] is trying to inject some opportunity for political decision-making into the court process, which is not what court proceedings are meant to be about.”

When the Supreme Court denied the stay application in July, Justice Anthony Kennedy wrote the decision in his last act on the bench. Now with Justice Brett Kavanaugh replacing Kennedy, there is a solid conservative majority on the Court, which potentially could play into the treatment of this case.

“The Court can do whatever five justices want to do without precedent or giving any reason,” said Pat Parenteau, environmental law professor at Vermont Law School. “That’s what happened with the Clean Power Plan litigation, which the Court stopped dead in its tracks before the DC Circuit could issue a ruling. The vote was strictly partisan 5-4 with no opinion.”  

“In its earlier denial of a requested stay the Court signaled its skepticism about the case and urged the District Court to quickly rule on the motions to dismiss and for summary judgment,” Parenteau said. “Aiken took her time before denying the motions (except for dismissing Trump and one of the claims) on the eve of trial. That might be enough to tip the Court to intervene.”  

Michael Burger, executive director of the Sabin Center for Climate Change Law at Columbia University, had a different outlook. “I see no reason for the Supreme Court to alter its earlier decision to decline issuing a stay of the district court’s proceedings,” he said.

“There are clearly material issues of fact that warrant a trial. To the extent the Court as currently constituted can foresee overturning any of the legal decisions issued to date it should wait until the case has run its due course, and hear the appeal after the district court and Ninth Circuit have made their final decisions.”

Julia Olson, executive director of Our Children’s Trust and co-counsel for youth plaintiffs, echoed that perspective.

“At its heart, Juliana is a conservative case and the Court can review it with a fully formed record once it gets to it in the ordinary course of litigation after final judgment,” she said.